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(Erdem Gül and Can Dündar [GK], B. No: 2015/18567, 25/2/2016, § …)
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REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 

 PLENARY

 

JUDGMENT

 

ERDEM GÜL AND CAN DÜNDAR

Application no. 2015/18567

 

25 February 2016

 

 

 

The Constitutional Court held, at its plenary meeting on 25 February 2016, with regard to the individual application lodged by Erdem Gül and Can Dündar (no. 2015/18567) regarding the alleged violation of freedom of expression and press and unlawful detention, that the applicants’ right to personal liberty and security safeguarded by Article 19 of the Constitution and freedom of expression and press respectively safeguarded by Articles 26 and 28 of the Constitution were violated and also that the judgment be sent to the incumbent court for redress of the violation.

 

III. THE FACTS

[9-39]. Some trucks, alleged to have been loaded with weapons, were stopped and searched in Hatay and Adana on 1 January 2014 and 19 January 2014 respectively. The issues related to stopping and search of these trucks, the materials in these trucks and where they were being taken had been a matter of public debate for a long period of time. In this context, a daily newspaper, Aydınlık, in its issue of 21 January 2014, published news alleging that these trucks were carrying weapons and ammunition and a photo related to such allegations.

Approximately sixteen months after this publication, Can Dündar, one of the applicants, published in the 29 May 2015 issue of the Cumhuriyet daily newspaper the photographs and information related to the weapons and ammunitions alleged to have been found on the trucks. In the 12 June 2015 issue of the same newspaper, another news on the same incident was published by Erdem Gül, the other applicant.

After the publication of the news by Can Dündar, the chief public prosecutor’s office made a press statement on 29 May 2015 and announced that an investigation was launched on the charges of “obtaining information related to the security of the State, conducting political and military espionage, disclosing information that must be kept confidential and making propaganda of a terrorist organization”. Approximately six months after this announcement, the applicants were summoned by phone on 26 November 2015 to have their statements taken, and they were detained on charges of “aiding the FETÖ/PDY (Parallel State Structure) armed terrorist organisation without being a member of it and obtaining and disclosing information that, due to its nature, must be kept confidential for reasons related to the security or domestic or foreign political interests of the State, for the purpose of political or military espionage”. The applicants challenged the detention order against them; however, their challenge was rejected. Thereupon, the applicants lodged an individual application with the Constitutional Court.

IV.  EXAMINATION AND GROUNDS

40. The Constitutional Court, at its session of 25 February 2016, examined the application and decided as follows.

A.   The Applicants’ Allegations                                

41. The applicants maintained that they had been engaging in journalism for many years; that they had never been found guilty for their news, documentaries or articles during the period they worked as journalists; that the incident related to the stopping of trucks had been an issue on the public agenda; that this issue had also been mentioned in many television news and other newspapers and that even many politicians had made statements on this issue; that the news they had made concerned an incident having an important place on the public agenda and aimed at enlightening the public; that an investigation had been launched against them upon the publication of the news, and six months later they were detained on remand after their statements were taken; that there was no strong indication of guilt which justified the detention order against them; that they had never fled nor destroyed or tampered with evidence; and that although it had been stated that the chief public prosecutor’s office had launched an investigation against them following the impugned news they had made, they could not effectively apply to a judicial authority due to a restriction order that had been issued within the scope of the investigation. In this regard, the applicants alleged that their right to personal liberty and security enshrined in Article 19 of the Constitution, as well as, their freedoms of expression and the press stipulated in Articles 26 and 28 of the Constitution were violated, and they requested that the consequences of the alleged violations be redressed.

B.       The Court’s Assessment

1.        Admissibility

a.        Alleged Denial of Access to the Investigation File

42. The applicants claimed that they could not effectively challenge the detention order before a judicial authority due to a restriction order that had been issued within the scope of the investigation.

43. The Ministry, in its observations, stated that the İstanbul Magistrate Judge’s Office no. 1 had issued a restriction order; that the applicants’ challenge to this order had been dismissed by the İstanbul  Magistrate Judge’s Office no. 2; that the applicants had been informed of the offences they were charged with in the records of statement; that they had been asked questions about the imputed offences; and that during the interrogation, the document ordering their arrest which included the charges against them had been read to the applicants. Within this context, it was stated that the applicants had been able to give statements in the presence of their counsels, to effectively defend themselves against the questions addressed to them and to submit their complaints as to the procedure and the merits in detail at all stages. Given all these points, it was recalled that the applicants had been informed of the offences they had been charged with during the interrogation; that they had been provided with opportunities to refute the claims against them; that they had had information about the primary facts included in the file; that among the evidence forming a basis for the offences they had been charged with, they had learned about those which had been of special importance in terms of examining the lawfulness of their detention; and that they had effectively been able to challenge them.

44. In their counter-statements against the Ministry’s observations, the applicants, referred, apart from their claims stated in the application form, to certain judgments of the Constitutional Court (“the Court”) and the European Court of Human Rights (“the ECHR”) and maintained that the restriction of their access to the investigation file revealed that there was no evidence against them, but the content of the impugned news.

45. Article 19 § 8 of the Constitution provides as follows:

“Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful.”

46. Pursuant to the aforementioned provision of the Constitution, persons whose liberties are restricted are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release, if the restriction imposed upon them is not lawful. During the judicial process to be carried out under this provision, although it is not possible to provide all safeguards of the right to a fair trial, the concrete safeguards complying with the nature of detention must be set forth in a judicial decision (see Mehmet Haberal, no. 2012/849, 4 December 2013, §§122-123).

47.  The principles of “equality of arms” and “adversarial proceedings” must be respected in the review of the continuation of detention or the requests for release (see Hikmet Yayğın, no. 2013/1279, 30 December 2014, § 30). The principle of equality of arms means that parties of a case shall be subject to the same conditions in terms of procedural rights and that both parties shall be afforded equal opportunities to submit their allegations and arguments before the courts without any favour to any party (see Bülent Karataş, no. 2013/6428, 26 June 2014, § 70).

48. In cases where an arrested person is detained on remand, if he has been informed of the main evidence forming a basis for his detention during his statement before the prosecutor or the investigating judge and if this evidence has been referred to in an appeal against detention, the mere existence of a confidentiality order in the file does not lead to a violation of the safeguards needed to be ensured within the scope of the right to request release due to the alleged unlawfulness of detention (for a similar judgment of the ECHR, see Ceviz v. Turkey, no. 8140/08, 17 July 2012, § 43). In such cases, it shall be accepted that the relevant person has adequate information on the content of the documents forming a basis for his detention.

49. In the present case, when the applicants’ statements taken by the İstanbul Chief Public Prosecutor’s Office were examined, it was observed that the grounds for the investigation had been explained to them and that they were asked questions about the news subject of the investigation. They had also made defence submissions in company with their defence counsels by being aware of the documents and information forming a basis for the accusations against them. It was further understood that while appealing against their detention on remand, the applicants were again able to make detailed explanations on the issues that formed a basis for the accusations against them.

50. For these reasons, the applicants’ allegation that they could not effectively challenge the lawfulness of the detention order against them due to the restriction of their access to the investigation file must be declared inadmissible for being manifestly ill-founded.

b. Alleged Unlawfulness of Detention on Remand and Alleged Violations of the Freedoms of Expression and the Press

51. The applicants claimed that they were deprived of their liberties unlawfully, arbitrarily and disproportionately; that there was no justification for their detention, that the only ground for the detention order was the news that they had published; and that no evidence except for the published news was adduced against them. Accordingly, they alleged that their right to personal liberty and security and their freedoms of expression and the press were violated.

52. Given the circumstances of the present case, it has been considered that the alleged violation of the applicants’ right to personal liberty and security must be examined in conjunction with the alleged violations of their freedoms of expression and the press.

53.  Regarding the alleged unlawfulness of the applicants’ detention on remand, it was stated in the Ministry’s observations, with reference to certain judgments of the ECHR and the Constitutional Court, that in order for a person to be charged with an offence, it was not absolutely necessary to collect sufficient evidence in the course of arrest or detention; that as a matter of fact, the purpose of detention was to conduct the judicial process more properly by substantiating the suspicions forming a basis for detention during the investigation and/or prosecution; and that accordingly, the facts giving rise to suspicions underlying the accusation must not be assessed at the same level with the facts that would be discussed at later stages of the criminal proceedings and would lead to conviction.

54. In their counter-statements against the Ministry’s observations, the applicants stated that the subject-matter of the news they published had previously been discussed in many news. They claimed that the published documents had already been included and needed to have been included in the file of the ongoing criminal investigations against the police officers and the members of the judiciary concerning the stopping of the trucks, and that the public prosecutor’s office would not be able to conceal these documents from the defence. In this connection, the applicants maintained that the published photos and documents could not constitute a basis for the offences attributed to them in the detention order; that the acts attributed to them were of an abstract nature; and that at the utmost, the offence of “violation of the confidentiality of the investigation” under Article 285 of Law no. 5237 might have been committed. The applicants alleged that the judge, who ordered their detention within the scope of the questions he addressed to them, relied on the offence of espionage, although he did not know where the documents had been obtained from. The applicants further alleged that the assessment of evidence had explicitly been arbitrary.

55. Regarding the alleged violations of the freedoms of expression and the press, it was stated in the Ministry’s observations that the investigation against the applicants was still pending; that the legal remedies needed to be exhausted in order for them to be able to lodge an individual application; that on the other hand, the ECHR also delivered some judgments where it dismissed the Government’s allegation concerning non-exhaustion of domestic remedies in certain cases where criminal proceedings were still continuing and decided to join its examination to the merits; and that accordingly, “it is at the discretion of the Constitutional Court to decide whether the ordinary remedies were exhausted or not”. The Ministry’s assessment on the merits referred to the judgments of the ECHR. It was stated that an assessment was to be made as to whether the detention order that allegedly constituted an interference with the applicants’ freedoms of expression and the press had stemmed from a pressing social need in a democratic society and as to whether a reasonable balance had been struck between the means of interference and the aim pursued.

56. In their counter-statements against the Ministry’s observations, the applicants argued, similar to their assertions in the application form, that the impugned news and photos complied with the vital role of the press in a democratic society and that although the interference with the freedom of expression aimed at fulfilling one of the legitimate purposes stipulated in Articles 26 and 28 of the Constitution, it failed to satisfy the requirements of necessity in a democratic society and of proportionality enshrined in Article 13 of the Constitution.

57. In order for an assessment to be able to be made as to whether the legal remedies were exhausted within the scope of the alleged violations of the freedoms of expression and the press, the subject-matter of the application must be determined within the scope of the allegation in question. The subject-matter of the application before the Constitutional Court is the alleged violations of the applicants’ freedoms of expression and the press on account of their “detention on remand” on the basis of the news which they had published, and it is not related to the merits of the case or to the probable outcome of the proceedings.

58. In order for an examination as to the alleged violations of the freedoms of expression and the press due to detention, the continuing judicial process does not need to be completed. It is clear that the applicants have exhausted the legal remedies by appealing against their detention on remand which gave rise to their allegations. As a matter of fact, in the application of Hidayet Karaca [Plenary] (no. 2015/144, 14 July 2015, §§ 115 and 116), the Constitutional Court reviewed the effects of detention on the freedom of expression prior to the finalization of the investigation and prosecution processes. However, having regard to the facts, the nature of the evidence and the grounds which were relied on in the detention order, the Court found no problem as to the lawfulness of detention, and therefore declared the relevant complaint inadmissible for being manifestly ill-founded.

59. As also stated in the observations of the Ministry of Justice, the ECHR examined the allegations as to the effects of the detention on the freedoms of expression and the press without requiring the finalization of the investigation and prosecution phases and dismissed the Government’s objection as to non-exhaustion of domestic remedies (see Nedim Şener v. Turkey, no. 38270/11, 8 July 2014, §§ 88-90, 96; and Şık v. Turkey, no. 53413/11, 8 July 2014, §§ 77-79, 85).

60. Consequently, the alleged unlawfulness of the applicants’ detention on remand and alleged violations of their freedoms of expression and the press must be declared admissible for not being manifestly ill-founded and there being no other grounds to declare them inadmissible.  

2.    Merits

61. The Constitutional Court’s review in the instant case is limited to the lawfulness of the applicants’ detention on remand and to the effects of the detention on their freedoms of expression and the press, independently of the investigation and prosecution conducted against the applicants and of the probable outcome of the proceedings. This review will not be conducted into the merits of the applicants’ case pending before the court of first instance, and therefore, it does not cover the issue as to whether the publication of the impugned news constituted a crime.

a. Alleged Unlawfulness of the Applicants’ Detention on Remand

i. General Principles

62. Right to personal liberty and security is a fundamental right that ensures the prevention of arbitrary interference by the State with the freedoms of individuals (for similar judgments of the ECHR, see Medvedyev and Others v. France, no. 3394/03, 29 March 2010, §§ 76-79; Lütfiye Zengin and Others v. Turkey, no. 36443/06, 14 April 2015, § 74; and Assanidze v. Georgia [GC], no. 71503/01, 8 April 2004, §§ 169, 170).

63. In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. Certain circumstances under which individuals may be deprived of their freedoms, provided that the procedure and conditions of detention are prescribed by law, are listed in Article 19 §§ 2 and 3 thereof. Therefore, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists (see Ramazan Aras, no. 2012/239, 2 July 2013, § 43).

64. Article 19 § 3 of the Constitution reads as follows:

“Individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention. Arrest of a person without a decision by a judge may be executed only when a person is caught in flagrante delicto or in cases where delay is likely to thwart the course of justice; the conditions for such acts shall be defined by law.”

65. The relevant provision stipulates that individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention.

66. In this context, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. This is a condition sine qua non for having recourse to the detention measure. Therefore, the accusation must be supported with plausible evidence likely to be considered strong. Nature of the facts and information which may be considered as plausible evidence is mainly based on the particular circumstances of each case (see Hanefi Avcı, no. 2013/2814, 18 June 2014, § 46). However, for accusing a person, it is not absolutely necessary that adequate evidence be available at the stage of his arrest or detention on remand. In fact, the aim of detention is to conduct the judicial process in a more reliable manner by means of substantiating or eliminating the suspicions forming a basis for detention on remand. Accordingly, the facts forming a basis for the suspicions on which the accusation is based and the facts which would be discussed at the subsequent stages of the criminal proceedings and which would be a basis for conviction must not be considered at the same level (see Mustafa Ali Balbay, no. 2012/1272, 4 December 2013, § 73).

67. Pursuant to Article 19 § 3 of the Constitution, for a detention order to be given, in addition to the existence of a strong suspicion of guilt, there must also be “a ground for detention”. In the relevant provision, grounds for detention are defined as “the prevention of fleeing of individuals against whom there exists a strong indication of guilt, prevention of the destruction and tampering of evidence” and as “the other circumstances prescribed by law and necessitating detention”. The grounds for detention are listed in Article 100 of Law no. 5271, where detention is regulated. According to this Article, a “ground for arrest” may be deemed as existing; a) if the suspect or accused had fled, eluded or if there are specific facts which justify the suspicion that he is going to flee; b) if the conduct of the suspect or the accused tend to show the existence of a strong suspicion that he is going to attempt to destroy, hide or tamper with the evidence and to put an unlawful pressure on witnesses, the victims or other individuals. The same article also provides a list of the offences for which a ground for detention may be deemed as existing, in the event that there is a strong suspicion of their having been committed (see Ramazan Aras, § 46). Even where a presumption is stipulated in the law, the existence of concrete facts that require an interference with an individual’s freedom must be put forth in a way satisfying an objective observer (see Engin Demir [Plenary], no. 2013/2947, 17 December 2015, § 66).

68. In addition, detention that is a severe and harsh measure may be deemed reasonable only if it is proven that another less severe measure would not be sufficient for protecting individual’s interest and public interest. In this respect, existence of strong indication of guilt for deprivation of liberty is not sufficient for applying detention measure. This measure must also be “necessary” under the specific circumstances of the present case (for a similar judgment of the ECHR, see Lütfiye Zengin and Others v. Turkey, § 81). This is also required by the element of “necessity”, one of the components of the “proportionality” principle that is among the criteria sought for restricting fundamental rights and freedoms set out in Article 13 of the Constitution (see the Court’s judgment no. E.2015/40 K.2016/5, 28 January 2016). In order for a balance required to be respected between the aim pursued and the interference made, measures of conditional bail must be primarily assessed and the question as to why conditional bail would remain insufficient must be justified in detention orders (see Engin Demir [Plenary], § 69).

69. Besides, issues as to the interpretation of law or as to factual or legal errors, which are included in the inferior courts’ decisions, cannot be dealt with during the individual application process unless fundamental rights and freedoms enshrined in the Constitution are violated. It is also within the inferior courts’ discretionary power to interpret legal provisions on detention and apply them to the present case (see Ramazan Aras, § 49). However, it is the Constitutional Court’s duty to examine whether the conditions set out in Article 19 § 3 of the Constitution are indicated in the grounds of detention orders which are subject-matter of the individual application and whether the proportionality principle, one of the criteria sought for restriction of fundamental rights and freedoms and set out in Article 13 of the Constitution, has been observed in applying detention measure under the specific circumstances of the present case.

ii. Application of Principles to the Present Case

70. The Cumhuriyet daily newspaper, in its issue of 29 May 2015, contained the news titled “Here are the weapons Mr. Erdoğan says do not exist (İşte Erdoğan'ın yok dediği silahlar)” and its issue of 12 June 2015 contained the news titled “The weapons in the MIT trucks Erdoğan says “exist or not” are confirmed by the Gendarmerie to exist – Gendarmerie says they “exist” (Erdoğan'ın 'Var ya da Yok' Dediği MİT TIR'larındaki Silahlar Jandarmada Tescillendi-Jandarma 'Var' Dedi)” concerning the trucks which had been stopped and searched. In the present case, it was claimed that, by publishing these news, the applicants served the organizational purposes of the FETÖ/PDY, an armed terrorist organization, and that they had obtained, for purposes of espionage, the information needed to remain confidential for the security of the State and for its domestic and foreign political interests and disclosed these information. In this connection, the applicants were detained on remand for “aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it” under Article 314 § 2 of Law no. 5237 with reference to Article 220 § 7 thereof, for “obtaining information that, by its nature, must be kept confidential for reasons relating to the security or domestic or foreign political interests of the State, for the purpose of political or military espionage” under Article 328 thereof, and for “disclosing, for the purpose of political or military espionage, the information that, by its nature, must be kept confidential for reasons relating to the security of the State” under Article 330 thereof, respectively.

71. The constitutional review as to whether the right to personal liberty and security has been violated must be primarily conducted concerning the question as to whether there was a “strong indication” of guilt, which is one of the compulsory conditions enumerated in Article 19 § 3 of the Constitution for applying detention measure.  Regard being had to the facts that the subject-matter of the application was the detention measure and that there were ongoing proceedings against the applicants, the Constitutional Court restricted this review with the question as to whether reasoning of the detention order issued by the magistrate judge’s office and the request letter for detention had indicated the concrete facts revealing the strong suspicion of guilt.   

72. During the statement taking process of the applicants before the chief public prosecutor’s office, no question was addressed to them as to any fact which might be related to the offences attributed to them, other than the news subject-matter of the application.

73. In the reasoning of the detention order issued against the applicants for “aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”, it was stated that by virtue of their profession, the applicants were expected to have known that the news they had published had been related to a terrorist organization against which there had been an ongoing investigation. However, the applicants had published the documents that needed to have been kept confidential for reasons relating to the security of the State, which revealed the existence of a strong suspicion of guilt. In addition, it was pointed out that the imputed offence was among the offences listed in Article 100 § 3 (a)(11) of Law no. 5271. In addition, given the upper limit of the sentence to be imposed due to the imputed offence, it was concluded that application of the provisions related to conditional bail would be insufficient.

74. In the reasoning of the detention order issued against the applicants for “obtaining information in possession of the State that must be kept confidential for the purpose of political or military espionage”, it was pointed out that although the applicants had stated that “the facts which were the subject-matter of the documents disclosed in the impugned news had already been discussed by the public previously and they were not a secret”, the published documents had in fact been obtained and disclosed for the first time by the applicants, which constituted a strong suspicion of guilt. In addition, given the lower and upper limits of the sentence to be imposed due to the imputed offence, it was concluded that application of the provisions related to conditional bail would be insufficient.

75. The judge’s office that examined the applicants’ appeal against the detention order dismissed their appeal. In the reasoning of its decision, the judge’s office stated that it had been announced to the public that the investigation into the trucks in question had been kept confidential for reasons relating to the security or domestic or foreign political interests of the State. It therefore concluded that the publication of the news by the applicants amounted to the act of aiding and abetting the FETÖ/PDY armed terrorist organization knowingly and willingly.

76. Accordingly, the main fact underlying the decision ordering detention of the applicants was that two news on stopping and searching of the trucks had been published in the Cumhuriyet newspaper. Although the decision ordering the applicants’ detention read that “the state of evidence” with regards to the charged crimes was sufficient for their detention, such decision mentioned no evidence other than the said news. The applicants were detained on the charges of publishing the information and photos in the said news for the purposes of “aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it” and obtaining and disclosing such information and photos for “political and military espionage purposes”. However, the reasoning of the detention order did not sufficiently explain which concrete facts attributable to the applicants led to strong suspicion of guilt that the said news had been published for “political and military espionage purposes”. With regards to strong suspicion of guilt concerning “aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”, the reasoning of detention order did not provide any concrete facts other than the opinion that “by virtue of their profession, the applicants were expected to have known that the news they had published had been related to a terrorist organization against which there had been an ongoing investigation”.

77. In addition, the news published in another newspaper on 21 January 2014, two days after the stopping and search of the trucks, included a photo and some information pertaining to the materials alleged to be carried by the trucks. In addition to the abstract discussions by the public on what was in the trucks, the facts that similar photos and information had been published approximately sixteen months before the imputed news and that even on the date of examination of the application file they were easily accessible on the internet must be taken into consideration in the determination of the existence of a strong suspicion of guilt.  

78. In this context, whether the publication of the news similar to a previously published one continued to pose a threat against national security must be specified in the grounds of the measures to be applied with respect to the impugned news (for a judgment of the ECHR concerning the publication of the previously published confidential information pertaining to national security, see Observer and Guardian v. the United Kingdom, no. 13585/88, 26 November 1991, §§ 66-74).

79. On the other hand, it must be assessed whether the detention measure was “necessary” within the scope of the proportionality principle, which is one of the criteria set out in Article 13 of the Constitution. Taking into account the proceedings pending against the applicants, the Court would conduct the constitutional review in respect thereof on the basis of only the detention process and the reasons for the applicant’s detention. 

80. Can Dündar, one of the applicants, published on 29 May 2015 the first impugned news. On the same day, the İstanbul Chief Public Prosecutor’s Office announced to the public that an investigation was launched into the news and requested blocking of access to the content of the said news on the internet, which was considered to be related to national security and to serve for supporting an armed terrorist organization. The incumbent judge’s office accepted the request. Later on, the news prepared by Erdem Gül, the other applicant, was published in the same newspaper on 12 June 2015. The applicants were summoned by phone on 26 December 2015 to have their statements taken and were detained on the same day. During approximately six-month period from the first announcement of the investigation until the date when the applicants were summoned to have their statements taken, the İstanbul Chief Prosecutor’s Office did not take the applicants’ statements, and no measure was taken against the applicants such as custody or detention on remand. The questions addressed to the applicants and the grounds for their detention did not reveal any evidence –apart from the news published– collected throughout the said period substantiating the allegation that they had committed the crimes they were charged with.

81. In this context, the circumstances of the case and the grounds of the detention order did not sufficiently put forth why it was “necessary” to place the applicants in detention on remand approximately six months after an investigation into the said news had been launched and without considering that similar news concerning an incident giving rise to intense public discussions had been published several months before.

82. Consequently, the Constitutional Court found a violation of the applicants’ right to personal liberty and security safeguarded by Article 19 of the Constitution

Mr. Hicabi DURSUN, Mr. Kadir ÖZKAYA and Mr. Rıdvan GÜLEÇ did not agree with this conclusion.

b. Alleged Violations of the Freedoms of Expression and the Press

i. General Principles

83. Relevant part of Article 26, titled “Freedom of expression and dissemination of thought”, of the Constitution reads as follows:

“Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities…

The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.

(…)

The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law.”

 

84. Relevant part of Article 28, titled “Freedom of the press”, of the Constitution reads as follows:

The press is free, and shall not be censored…

  (…)

 The State shall take the necessary measures to ensure freedom of the press and information.

In the limitation of freedom of the press, the provisions of articles 26 and 27 of the Constitution shall apply.

Anyone who writes any news or articles which threaten the internal or external security of the State or the indivisible integrity of the State with its territory and nation, which tend to incite offence, riot or insurrection, or which refer to classified state secrets or has them printed, and anyone who prints or transmits such news or articles to others for the purposes above, shall be held responsible under the law relevant to these offences. Distribution may be prevented as a precautionary measure by the decision of a judge, or in case delay is deemed prejudicial, by the competent authority explicitly designated by law. The authority preventing the distribution shall notify a competent judge of its decision within twenty-four hours at the latest. The order preventing distribution shall become null and void unless upheld by a competent judge within forty-eight hours at the latest.

(…)”.

85. In several judgments of the Court, basic principles concerning the freedoms of expression and the press are mentioned in detail (see Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, §§ 57-67; Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, §§ 30-38; Ali Rıza Üçer (2) [Plenary], no. 2013/8598, 2 July 2015, §§ 30-33; Ergün Poyraz (2) [Plenary], no. 2013/8503, 27 October 2015, §§ 33-39; and Medya Gündem Dijital Yayıncılık Ticaret A.Ş. [Plenary], no. 2013/2623, 11 November 2015, §§ 44).

86. Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. It is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society" (see Handyside v. the United Kingdom, no. 5493/72, 24 September 1976, § 49). Existence of social and political pluralism depends on the ability to express any kind of opinion freely and in a peaceful manner (see Emin Aydın, no. 2013/2602, 23 January 2014, § 41).  

87. Freedom of the press, which is a specific aspect of the freedom of expression, is not a safeguard protecting merely the right of the press to impart and disseminate news. It is also directly related to the public’s right to receive news and ideas for ensuring democratic pluralism. In particular, it is indispensable in order to ensure the democratic pluralism that the news and ideas within the scope of the debates concerning the public are made accessible to the people and the people are allowed to participate in such debates. In this context, the fact that the press is able to impart news and ideas –within the boundaries of journalism ethics- by fulfilling its tasks as “a public watchdog” also contributes to ensuring transparency and accountability in a democratic society (for similar judgments of the ECHR, see Von Hannover v. Germany (No. 2) [GC], nos. 40660/08 and 60641/08, 7 February 2012, § 102; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, 20 May 1999, §§ 59, 62; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, 17 December 2004, § 71). A healthy democracy requires that the public institutions be supervised not only by the legislative or judicial authorities, but also by other actors such as non-governmental organizations and the press or the political parties that perform activities in the political sphere (see Ali Rıza Üçer (2), § 55).

88. In addition, the freedoms of expression and the press are not absolute rights which may be subject to restrictions. As a matter of fact, the grounds for such restriction are set out in Article 26 § 2 of the Constitution, which concerns the right to expression. In restricting the freedom of the press, Articles 26 and 27 of the Constitution will in principle apply pursuant to Article 28 § 4 thereof. Besides, exceptional circumstances whereby the freedom of the press may be restricted are indicated in Article 28 §§ 5, 7 and 9 of the Constitution (see Bekir Coşkun, § 37).

89. Accordingly, the freedoms of expression and the press may be restricted for the purposes of “maintaining national security”, “preventing offences”, “punishing offenders”, “preventing disclosure of information duly classified as State secret” and “prevention of disclosure of confidential information of the State”, pursuant to Articles 26 § 2 and 28 § 5 of the Constitution. To that end, it is possible to criminalize, and impose punishment for, the act of disclosing confidential information of the State through press. Nor is there a constitutional obstacle before applying detention measure, during the investigation and prosecution to be carried out, in respect of press members alleged to have performed such acts. As a matter of fact, the ECHR considers that the press must perform its duties within the boundaries of the journalism ethics. The State may impose restrictions on the news to be published by the journalists regarding a very delicate matter such as national security, as well as the public authorities may prevent the publication of certain news on such matters (see Observer and Guardian v. the United Kingdom, §§ 61-65).

90. However, the restriction to be imposed on the freedoms of expression and the press must be in conformity with the principles of “being necessary in a democratic society” and “being proportionate”, which are among the general restriction criterion stipulated in Article 13 of the Constitution. The principle of being necessary in a democratic society must be interpreted based on pluralism, tolerance and open-mindedness. The principle of proportionality reflects the relationship between the aim of restriction and the means used to achieve this aim. Inspection of proportionality is the inspection of the means chosen to achieve the aim sought. Therefore, as regards the interferences with the freedoms of expression and the press, it must be assessed whether the means chosen to achieve the aim sought is “appropriate”, “necessary” and “proportionate” (see Fatih Taş, §§ 90, 92, 96).

91. In this sense, in the assessment of whether a judicial or administrative interference with the freedoms of expression and the press has been “necessary”, the Constitutional Court takes into consideration whether it has served “a pressing social need” (see Bejdar Ro Amed, no. 2013/7363, 16 April 2015, § 68; for a similar judgment of the ECHR, see Handyside v. the United Kingdom, § 48). An assessment to this end shall be made based on the grounds adduced by the public authorities.

ii. Application of Principles to the Present Case

92. Considering the questions addressed to the applicants by the chief public prosecutor’s office and the reasoning of the detention order issued against the applicants, no facts were mentioned– except for publishing news in the newspaper– that might constitute a basis for the charges against them. In this context, the applicants’ detention on remand, irrespective of the contents of the news, constituted an interference with their freedoms of expression and the press (for the judgments of the ECHR, where detention constituted an interference with the freedom of expression, see Nedim Şener v. Turkey, § 98; and Şık v. Turkey, § 85).

93. On the other hand, not every interference with the fundamental rights and freedoms leads, per se, to a violation of the right or freedom in question. In order to determine whether an interference violates the freedoms of expression and the press, it must also be examined whether such an interference meets the criteria of being prescribed by law, having legitimate aim, being necessary in a democratic society and being proportionate.

94. There is no doubt that the said interference has a legal basis in the relevant articles of Law no. 5271 and Law no. 5237.

95. Pursuant to Articles 26 § 2 and 28 § 5 of the Constitution, freedoms of expression and the press may be restricted for the purposes of “national security”, “preventing crime”, “punishing offenders”, “withholding information duly classified as a state secret” and “preventing the disclosure of the State’s confidential information”. Considering the grounds for the detention order and the nature of the crimes charged against the applicants, it is seen that the aim pursued with the detention of the applicants was compatible with the aforementioned purposes of restriction set forth in the Constitution.

96. The fact that the interference had a legal basis and pursued a legitimate aim is not sufficient alone to justify that the interference did not lead to a violation. For an assessment as to whether the applicants’ detention on remand violated their freedoms of expression and the press, the facts of the case must also be reviewed in terms of “being necessary in a democratic society” and “being proportionate”. The Constitutional Court shall carry out such a review having regard to the detention process and to the reasoning of the detention order.

97. Regard being had to the foregoing assessments on the lawfulness of the applicants’ detention on remand and considering that the only fact taken as a basis for the accusations against the applicants was the publication of the relevant news, a severe measure such as detention, which did not meet the criteria of lawfulness, cannot be considered proportionate and necessary in a democratic society.

98. Furthermore, the applicants were detained approximately six months after an investigation into the impugned news had been launched and without considering that similar news had been published sixteen months before in another newspaper, which constituted an interference with their freedoms of expression and the press. The circumstances of the present case and the reasoning of the detention order did not put forth any “pressing social need” that gave rise to such an interference and its necessity in a democratic society to ensure the national security.

99. In addition, in the assessment of the necessity in a democratic society and of the proportionality, the potential “deterrent effect” of the interferences with the freedoms of expression and the press on the applicants and in general the press must be taken into account (see Ergün Poyraz (2), § 79; for similar judgments of the ECHR, see Nedim Şener v. Turkey, § 122; and Şık v. Turkey, § 111). In the present case, it is also clear that the applicants’ detention on remand in the absence of concrete facts, apart from the news published by them, and there being no grounds substantiating their detention, may have a deterrent effect on their freedoms of expression and the press.

100. Consequently, the Constitutional Court found violations of the applicants’ freedoms of expression and the press, respectively safeguarded by Articles 26 and 28 of the Constitution, in conjunction with their right to personal liberty and security safeguarded by Article 19 of the Constitution, which was also found to have been violated.

Mr. Hicabi DURSUN, Mr. Kadir ÖZKAYA and Mr. Rıdvan GÜLEÇ did not agree with this conclusion.

3. Application of Article 50 of Law no. 6216

101. Article 50 §§ 1 and 2 of the Code on Establishment and Rules of Procedures of the Constitutional Court no. 6216 dated 30 March 2011 reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.   In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled.   However, legitimacy review cannot be done, decisions having the quality of administrative acts and transactions cannot be made.   

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

102. The applicants did not seek compensation. They requested that the violation be redressed.

103. It was concluded that the applicants’ right to personal liberty and security, as well as their freedoms of expression and the press were violated.

104. It must be ordered that a copy of the judgment be sent to the 14th Chamber of the İstanbul Assize Court in order to redress the violation.

105. The court fee of 226.90 Turkish liras (TRY), which is calculated over the documents in the case file, must be reimbursed to the applicants respectively; and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicants jointly.

V. JUDGMENT

For the reasons explained above, the Constitutional Court held on 25 February 2016:

A. 1. UNANIMOUSLY that the alleged denial of access to the investigation file within the scope of the right to personal liberty and security be DECLARED INADMISSIBLE for being manifestly-ill founded;

     2. UNANIMOUSLY that the alleged unlawfulness of detention on remand within the scope of the personal liberty and security be DECLARED ADMISSIBLE;

     3. UNANIMOUSLY that the alleged violations of the freedoms of expression and the press be DECLARED ADMISSIBLE;

B. By MAJORITY and by dissenting opinion of Mr. Hicabi DURSUN, Mr. Kadir ÖZKAYA and Mr. Rıdvan GÜLEÇ, that the right to personal liberty and security safeguarded by Article 19 of the Constitution was VIOLATED;

C. By MAJORITY and by dissenting opinion of Mr. Hicabi DURSUN, Mr. Kadir ÖZKAYA and Mr. Rıdvan GÜLEÇ, that the freedoms of expression and the press safeguarded respectively by Articles 26 and 28 of the Constitution was VIOLATED;

D. That a copy of the judgment be SENT to the 14th Chamber of the İstanbul Assize Court in order to redress the consequences of the violation;

E. That the court fee of TRY 226.90 be REIMBURSED to the applicants respectively; and the counsel fee of TRY 1,800 be REIMBURSED to the applicants jointly;

F. That the payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

G. That a copy of the judgment be SENT to the Ministry of Justice.

 

DISSENTING OPINION OF JUSTICE HİCABİ DURSUN

1. The applicants request that the Constitutional Court finds a violation as regards the alleged unlawfulness of their pre-trial detention and alleged violation of their freedoms of expression and the press.

2. Can DÜNDAR, one of the applicants, reported news in the 29 May 2015 issue of the Cumhuriyet newspaper of which he was the editor-in-chief, titled “Here are the weapons Mr. Erdoğan says do not exist (İşte Erdoğan'ın yok dediği silahlar)”. Erdem GÜL, the other applicant, who was the Ankara Representative of the Cumhuriyet, published news in the 12 June 2015 issue of the same newspaper, titled “Gendarmerie says they exist (Jandarma var dedi)”.

3. On 29 May 2015 the İstanbul Chief Public Prosecutor’s Office announced to the public that the contents of these news were considered within the scope of Articles 327, 328 and 330 of the Turkish Criminal Code no. 5237 (“the TCC”) as well as Articles 6 and 7 of the Anti-Terror Law no. 3713. Therefore, an investigation was launched against the applicants for the offences such as “obtaining information related to the security of the State, conducting political and military espionage, disclosing information that must be kept confidential and making propaganda of a terrorist organization”.

4. The chief public prosecutor’s office also requested from the incumbent court that pursuant to Article 8 (a) of Law no. 5651, access to the contents of the news be blocked and that in the event that the contents in question were not removed, access to the relevant websites be completely blocked. The İstanbul Magistrate Judge’s Office no. 8 ordered the blocking of access to the news contents in question, on the ground that they might lead to an inconvenient situation as regards the national and international interests, as well as, national security of the Republic of Turkey. The chief public prosecutor’s office, relying on the legal qualification of the charges and the evidence available in the file, requested the restriction of access to the investigation file. The İstanbul Magistrate Judge’s Office no. 1 issued a restriction order on the investigation file, under Article 153 of the Code of Criminal Procedure (“the CCP”), with a view to ensuring the proper conduct of the investigation.

5. After this decision, the applicant Can DÜNDAR applied to the chief public prosecutor’s office and requested to review the investigation file and take a copy of it. The chief public prosecutor’s office, pointing out the court’s restriction order on the investigation file, dismissed the applicant’s request. On 8 June 2015 the applicant filed a challenge with the court requesting that the restriction order be lifted. On 12 June 2015 the İstanbul Magistrate Judge’s Office no. 2 dismissed the applicant’s challenge.

6. Within the scope of the relevant investigation, the İstanbul Chief Public Prosecutor’s Office summoned the applicants on 26 November 2015 and took their statements based on the charges of “aiding an armed terrorist organisation knowingly, without being a member of it, and obtaining information that, by its nature, must be kept confidential as being related to the security or domestic or foreign political interests of the State, for the purpose of political or military espionage, and disclosing them”. The applicants denied the accusations against them. On 26 November 2015 the İstanbul Magistrate Judge’s Office no. 7, relying on the abovementioned charges against the applicants, ordered their detention on remand.

7. The applicants’ challenge to the detention order was dismissed by the İstanbul Magistrate Judge’s Office no. 8 on 1 December 2015. After this decision, the applicants lodged an individual application on 4 December 2015. The applicants’ subsequent requests for release were also rejected by the magistrate judge’s offices.

8. The subject matter of both news published by the applicants related to what was in the trucks that were stopped and searched by the gendarmerie officers in Hatay on 1 January 2014 and in Adana on 19 January 2014 and to where they were going. It was officially stated that the trucks allegedly loaded with weapons and stopped at the Sirkeli Tool Booths in Adana on 19 January 2014 belonged to the National Intelligence Organization (“the MIT”) and they were carrying aid to Turkmens in Syria.

9. The 21 January 2014 issue of the Aydınlık newspaper contained the news titled “Aydınlık reaches the photo of the ammunition, that is no small matter, but cannon ball (Aydınlık mühimmatın fotoğrafına ulaştı, boru değil top mermisi)”. According to the content of the news: a report was received by the Adana Provincial Gendarmerie Command stating that three “TRUCKS” were carrying weapons and ammunition to Syria; upon this report, the Adana Public Prosecutor issued a search warrant; in the meantime, it was officially stated the trucks belonged to the MIT; the Governor and senior bureaucrats negotiated in order to cease the search and to persuade the public prosecutor, but they obtained no result; thereupon, the Governor’s Office sent a warning letter to the Gendarmerie Command; in the letter it was reminded that the action in question was contrary to Law no. 2937 and would lead to a criminal action; thereafter, the public prosecutor’s office made some determinations and released the members of the MIT and the TRUCKS; and a confidentiality order was issued with respect to the qualification of the materials found. The information included in the news was supported with a photo. No investigation was launched into this news during the time elapsed.

10. The operations carried out on the TRUCKS gave rise to intense public debates in Turkey. Investigations were launched, and actions were brought, against some public officials that had planned, carried out and participated in these operations. In this respect, a case with 13 accused before the 7th Chamber of the Adana Assize Court, another case before the 16th Criminal Chamber of the Court of Cassation in the capacity of the first instance court, and another case with 122 accused lodged with the 14th Chamber of the İstanbul Assize Court, which has a direct or indirect relation with the issue, are still pending. About half of these accused are detained on remand, and almost all of them being tried are members of the judiciary or police officers.

11. According to the bill of indictment dated 7 May 2014 and numbered 2014/1969, which was accepted by the 7th Chamber of the Adana Assize Court and prepared by the Adana Chief Public Prosecutor’s Office, the facts that occurred before, during and after the “operation on the TRUCKS” can be summarized as follows:

12. The followings were reached, regard being had to the scope of all file, statements of suspects and witnesses, reports of historical traffic search, signalling information, footages and voice records pertaining to the date in question obtained through the Gendarmerie Emergency Number 156:

Two non-commissioned officers taking office in the Intelligence Bureau of the Ankara Provincial Gendarmerie Command (“the Gendarmerie Intelligence Unit”) received information on clear identities, addresses and mobile phone numbers of 7 officials of the MIT from an anonymous person. Despite the questions asked by the public prosecutor’s office in its instruction letters of different dates, the two non-commissioned officers did not tell from whom they had received the information about 7 members of the MIT. They identified the anonymous person in question as “report officer” and insisted on not disclosing his identity. They included the names of these 7 officials of the MIT among 29 persons in respect of whom a request for wiretapping of their communication via 42 phone numbers was filed for the purpose of prevention within the scope of fight against drug traffic and smuggling, and thereby they made a “wiretapping decision” taken in respect of the MIT officers by the 13th Chamber of the Ankara Assize Court. They started to wiretap 7 officials of the MIT following the decision taken on the basis of a fabricated criminal charge. 9 persons in total including commissioned officers, non-commissioned officers and specialized sergeants taking office in the Ankara Gendarmerie Intelligence Unit and whose names were stated in the bill of indictment got involved in this request for preventive wiretapping. In this way, the persons who would take part in the relevant activity of the MIT and their duties were learned in detail. As they were aware through the “preventive wiretapping” that on 18 February 2014 at around 10.00 p.m. the TRUCKS would depart from Ankara Esenboğa, they initiated a physical surveillance that would be carried out by a non-commissioned officer and a specialized sergeant. They followed the TRUCKS, the plate numbers of which they had taken, towards Gölbaşı. Thereafter, they continued the surveillance through the cell tracking system of the Ankara Gendarmerie Intelligence Unit, as well as through other electronic systems. That night at around 4.00 a.m. a non-commissioned officer taking office in the Ankara Gendarmerie Intelligence Unit called a lieutenant taking office in the Adana Gendarmerie Intelligence Unit and gave detailed information to him, and they made plans about the actions to be taken collaboratively. On 19 January 2014 a non-commissioned officer and a commissioned officer taking office in the Ankara Gendarmerie Intelligence Unit had phone conversations with three commissioned officers taking office in the Adana Gendarmerie Intelligence Unit and gave information on the fact that the TRUCKS had departed. On 19 January 2013, although it was weekend, after 6.00 a.m. the officers working in all units of the Adana Gendarmerie Intelligence Unit were urgently called to the Command. One of the non-commissioned officers carrying out the physical surveillance of the TRUCKS in Ankara returned to the Intelligence Unit and met a lieutenant working there. After some time, they went in front of a dried fruits shop in Demetevler District by car. The non-commissioned officer –unconventionally- waited in the car. The lieutenant got off the car by wearing his beret and parka as camouflage. He swiftly entered the dried fruits shop and bought a telephone card and gave it to the non-commissioned officer. Although there were two telephone boxes near the dried fruits shop, they did not use the telephone there for fear of being recorded by the security cameras in the shops and the city surveillance cameras around. In order not to be recorded by the city surveillance cameras, they went through the side streets and went to a street in Etlik District. They stopped near a telephone box. The lieutenant got off the car and looked around. Afterwards, the non-commissioned officer got off the car, and at 7.27 a.m. he called the Adana Gendarmerie Intelligence Unit by dialling many numbers instead of 156, which could only be known by a professional. After saying that he did not want to disclose his name, he told that he wanted to make a denunciation. Although the denunciator stated “a truck loaded with ammunition”, the phrase “explosive ammunition and weapons” was written in the denunciation record. The phrase in question was then noted as “these vehicles are carrying weapons and materials to the foreign-based terrorist organizations, namely Al-Qaeda, through Hatay Province, therefore a search is recommended to be made at the Sirkeli Tool Booths in Ceyhan District” in the letter of the lieutenant in charge who requested a search to be conducted. This additional phrase was a sign of the fact that the incident was part of a scenario. On 19 January 2014 after this denunciation was received at 7.27 a.m. strict measures were taken during 5 hours until 12.00 a.m. at the Sirkeli Tool Booths to stop the TRUCKS. An officer was assigned to shadow the TRUCKS and give information about them. The TRUCKS were subject to physical surveillance from Pozantı District. The officers carrying out the surveillance were instructed that “the TRUCKS will never be stopped, they will only be followed, and the Security Directorate will definitely not been informed of this matter”. During the operation at the Sirkeli Tool Booths in Ceyhan District, although the persons in the TRUCKS many times told that they were members of the MIT and were performing the duty assigned to them by the MIT and although the officers of the Gendarmerie Intelligence Unit carrying out the operation had known this very well since the date on which a decision on preventive wiretapping was given, they pretended not to know. Therefore, a fight broke out between the MIT officers and the Gendarmerie Intelligence Unit officers. The MIT officers were subject to battery, coercion and violence. Many public officers arrived at the scene at different stages of the search process. The public prosecutor made some observations at the scene and handed over the TRUCKS. In this sense, the officers taking part in this operation performed the acts in question as part of a plan aimed at disclosing the activities of the MIT as well as the activities carried out as a state secret and spying, contrary to the imperative provisions of the National Intelligence Agency Act no. 2937. The officers taking part in this operation acted cooperatively; however, they made it appear to the public as if it had been a normal denunciation and a subsequent procedural process.

13. Within the scope of the investigation, the chief public prosecutor’s office addressed questions to the accused, such as: Why were the TRUCKS, which were started to be followed in Ankara, not stopped there? Why was any police or gendarmerie unit located in the provinces or districts between Ankara and Adana through which the TRUCKS went not informed of? Why were any measures not taken from Ankara to Adana about the TRUCKS alleged to have been loaded with explosive materials and carrying weapons to the Al-Qaeda terrorist organization? Why was an instruction given during the operations into the TRUCKS in Adana in order not to inform the Security Directorate of the matter? While the total of 81 speculations or denunciations have been received until now to the effect that the terrorist organizations of Isis and Al-Qaeda would carry out bombings in various provinces of Turkey and they have been notified to all security units as public notices, why was this denunciation wanted to be kept secret from all security units? The chief public prosecutor’s office stated that the accused failed to give consistent and convincing answers to these questions.

14. Having made these determinations, the chief public prosecutor’s office concluded as follows:

“It appears that why the suspects consciously and meticulously concealed the identity of the person who had provided them with the relevant information was due to their efforts to ensure that their espionage activities against the MIT would never be revealed.

Regard being had to the denunciation and all developments subsequent to it, to the manner in which the denunciation was made, to the fact that the denunciation gradually included the news pertaining to Al-Qaeda and to the fact that afterwards such news were frequently on the agenda at national and international levels, it has clearly been understood that the suspects, by having the trucks belonging to the MIT stopped in this manner and uncovering this situation to the world, aimed at putting the Government and State of the Republic of Turkey in a difficult situation in the international sphere and creating an image that the Government and State of the Republic of Turkey provided aid to the Al-Qaeda terrorist organization in Syria and the ISIS terrorist organization. It has also been understood that the purpose of the scenario and the operation in question was to carry out espionage activities against the State of the Republic of Turkey and to reveal the secrets of the State.

As a matter of fact, the reason why the operation was preferred to be carried out in Adana on 19 January 2014 was due to the fact that the espionage activity in question would have a great effect. On 19 January 2014 the 6th Annual Ambassadors Conference of the Ministry of Foreign Affairs was held in Adana. On the same day, the meeting where the Minister of Foreign Affairs delivered a closing speech was attended by 142 ambassadors and many official guests from all around the world. The date and the city of such an international meeting were chosen to carry out the operation.

Besides, the MIT trucks, which were considered to have been carrying aid to the Al-Qaeda terrorist organization or to have belonged to the Al-Qaeda, were allowed to go from Ankara to Adana for hours and to the east of Adana and then to the Sirkeli Tool Booths in Ceyhan District that was 60 km away from Adana. The trucks were only stopped there. Many press members were informed of this operation at the same time and only one or two minutes later the news concerning the trucks were reported to the agencies. The fact that the operation was carried out on the same date and in the same city with a meeting where ambassadors from all around the world came together is another indication that the suspects carried out the operation for the purpose of espionage.

Although the telephones of the members of the MIT had been wiretapped for some time and the MIT had other legal activities on different dates, the date in question was preferred. This operation, which was carried out on the date and in the city when and where ambassadors all around the world came together and in a very close place which was nearly before their eyes, was an important stage of an espionage activity which aimed at causing the Government and State of the Republic of Turkey to appear before the International Criminal Court and the International Court of Justice by means of creating an image that it was aiding the Al-Qaeda.

As a matter of fact, given that shortly after this incident it frequently appeared in national and international press that Syria complained about Turkey before the international organizations and the United Nations, alleging that the Republic of Turkey aided terrorist organizations such as Al-Qaeda and Al-Nusra and supplied lethal weapons to them, it can clearly be seen that the espionage activities of the suspects resulted in Syria’s favour and that Syria submitted these to the international organizations as evidence.

In addition, on 19 January 2014 at a hotel in Adana where 142 ambassadors and many official guests from all around the world gathered, while the Minister of Foreign Affairs stated -in order to ensure that the State of the Republic of Turkey would powerfully be able to participate to the Geneva II Conference on Syria to be held soon after that date- that “There is a secret cooperation between the regime (the Assad Regime of Syria) and the Al-Qaeda and the Isis. First, the regime strikes, and once the opposition gets weak, the Isis steps in. Geneva will eliminate these situations”, the suspects carried out the action in question by a denunciation that “MIT trucks are carrying weapons and ammunition to the Al-Qaeda”, which simply refuted the opinions of the State of the Republic of Turkey and the Ministry of Foreign Affairs. It was a planned and organized action which aimed at putting the State of the Republic of Turkey, the Ministry of Foreign Affairs of the Republic of Turkey and the MIT in a position of a country acting unrealistically, cooperating with terrorist organizations such as Al-Qaeda and Isis and supplying weapons to them in the international arena -in the eyes of the world countries and world public opinion- . It further aimed at refuting the thesis of the Ministry of Foreign Affairs at the Geneva II Conference from the very beginning and putting the Republic of Turkey and our country’s intelligence organization the MIT in a position to hardly defend themselves, and it thus planned to weaken the Republic of Turkey.

This espionage activity, therefore, aimed at strengthening Syria’s hand against Turkey and rendering the Government and State of the Republic of Turkey, the National Intelligence Organization and the Ministry of Foreign Affairs weak, guilty and helpless in the international community and against the Assad regime in Syria.

……………………………………………………

Furthermore, another purpose of the espionage activity was to render the National Intelligence Organization helpless, weak and incapable before the foreign countries and foreign intelligence organizations; to render it non-functional and unworkable even in our country and to disgrace it; and thereby to turn our country into a zone where foreign intelligence organizations swarm and carry our operations at their will. This per se demonstrates that the suspects’ action amounted to an espionage activity.

The fact that the activities of the National Intelligence Organization were tried to be deciphered on the given dates every ten days and tried to be prevented constantly was another proof demonstrating that the espionage activity in question was more systematic, organized and planned.

Besides, the fact that the denunciations in question had never been made to reveal the foreign spies in our country and never targeted any foreign intelligence organization, but generally targeted our intelligence organization the MIT, clearly demonstrates that the primary target of the espionage activity was the Government and State of the Republic of Turkey and the National Intelligence Organization.

One of the purposes sought to be achieved by means of committing the crimes in question was to target the MIT and render it inactive, non-functional, ineffective and weakened, and thereby to provide foreign intelligence organizations an easy working zone in our country. This is important in terms of demonstrating the scope of the crime of espionage committed by the suspects, as well as the intensity of deliberation on the part of them.

Furthermore, there were difficulties in collecting evidence in order to reveal all aspects of the incident during the investigation phase. In this context, most of our requests for collecting evidence have been rejected on various legal grounds. For these reasons, it has not been possible to reveal all aspects of the incident thoroughly.

In addition, regard being had to the facts that all suspects, who were involved in the incident and identified or not identified, were, by the very nature of their duties, well acquainted with the legal and judicial phases and processes in our country, that most of them were intelligence officers, and that therefore endeavoured to commit the imputed offences by showing due diligence in terms of confidentiality and not leaving behind evidence as far as possible; it cannot be said that such serious, organized, planned and systematic offences against the State of the Republic of Turkey would be able to be revealed in-depth and with their all aspects without leaving any secret about the incident.

However, even considering the incident and the actions of the above-mentioned suspects together, a lot of concrete and strong evidence have been collected as to the fact that the suspects committed the imputed offences as part of a scenario.”

15. Approximately one year after the actions had been brought against the operations into the MIT TRUCKS, the applicant Can Dündar, in the 29 May 2015 issue of the Cumhuriyet newspaper, published news which included the titles “Here are the weapons Mr. Erdoğan says do not exist. (İşte Erdoğan'ın yok dediği silahlar.)”, “The photos that will create a tremendous impression on the world’s agenda are published for the first time. (Dünya gündemini sarsacak görüntüler ilk kez yayımlanıyor.)”, “the Minister of Interior Mr. Ala had asked “Do you know what inside is?”. (İçişleri Bakanı Ala,İçindekileri biliyor musunuz?” demişti.)”, “We now know. (Artık biliyoruz.)”, “They said they were carrying medicine. (İlaç taşıyor dediler.)”, “They said they were taking aid to the Turkmens. (Türkmenlere yardım götürüyordu dediler.)”, “They persistently denied the allegation of carrying weapons. (Silah iddiasını ısrarla reddettiler.)”, “They took into custody the public prosecutor who had stopped the TRUCK and the gendarmerie officer who had searched it. (TIR’ı durduran savcıyı, arayan jandarma komutanını gözaltına aldılar.)”, “However, in the end, the photos of the weapons to be taken to Syria in the TRUCK that belonged to the MIT have been revealed. (Ama sonunda MİT’e ait TIR içinde Suriye'ye götürülen silahların görüntüleri ortaya çıktı.)”, “the Cumhuriyet has reached the photos of the TRUCKS that were stopped on 19 January 2014 upon denunciation. MIT TRUCKS are full of weapons. (Cumhuriyet, 19 Ocak 2014‟te ihbar üzerine durdurulan TIR’ların görüntülerine ulaştı. MİT TIR’ları ağzına kadar silah dolu.)” and “They were hidden under the medicines. (İlaçların altına gizlenmiş.)”. The news in question also gave information about the origin and quantity of the weapons. It also included some statements on this matter by some statesmen, members of parliament, public officials and members of the judiciary taking part in this operation.

16. The applicant Erdem GÜL in the Cumhuriyet newspaper of 12 June 2015, published, on the same matter, news which contained the titles “Gendarmerie says they exist. (Jandarma var dedi.)”, “The Gendarmerie reveals the weapons in the MIT TRUCKS that Mr. Erdoğan says exist or not. (Erdoğan’ın var ya da yok dediği MİT TIR’larındaki silahları Jandarma tescilledi.)”, “The report issued by the Gendarmerie General Command after the examinations made on the weapons found in the MIT TRUCKS that were stopped in Adana includes terrifying findings and information. (Adana’da durdurulan MİT TIR’larındaki silahlar üzerinde Jandarma Genel Komutanlığınca yapılan inceleme raporunda ürkütücü tespit ve bilgiler yer aldı.)”, and “High explosives, armoured penetrating weapons, incendiary weapons, lethal, wounding, burning and destructive weapons. (Yüksek infilak güçlü patlayıcı, zırhlı delici, yangın çıkarıcı, öldürücü, yaralayıcı, yakıcı, yıkıcı.)”. The content of the news included the expressions that “The Gendarmerie report pertaining to the weapons found in the MIT TRUCKS that were stopped in Adana included terrifying findings and information. According to the expert report issued by the Gendarmerie General Command on 23 January 2014, 4 days after the stopping of the TRUCKS on 19 January, the weapons might explode immediately or after a while or as a result of a crash; and they were lethal, wounding, burning and destructive weapons for living creatures, which could be regarded as explosives within the scope of the TCC. The uncertainties related to the MIT TRUCKS incident in Adana, which have always been on the top of the agenda of Turkey since the date on which it occurred and could not be sufficiently enlightened due to broadcast ban, are further clarified by the expert report issued by the Gendarmerie General Command.”. It also gave information about the origin and technical features of the weapons alleged to have been found in the TRUCKS that had been stopped at the Sirkeli Tool Booths in Adana. The news also stated that the public prosecutor who had sent the samples of the materials in the TRUCKS to the Gendarmerie Criminal Lab was detained and that the Governor submitted complaints about the public prosecutors who had been involved in this operation to the Supreme Council of Judges and Prosecutors. Below the news, there was other news, which had direct or indirect relation with this news, titled “Evasive response from the Ministry of Foreign Affairs: “While the Ministry of Foreign Affairs denied the allegations that Turkey provided support to the Isis, it ignored the assistance provided to others. (Dışişlerinden kaçamak yanıt: Dışişleri, Işid’e Türkiye’nin destek verdiğini yalanlarken diğerlerine yapılan yardımı görmezden geldi.)” and “Embarrassed explanation by the Chief Public Prosecutor’s Office. (Başsavcılıktan mahcup açıklama.)”.

17. After the İstanbul Chief Public Prosecutor’s Office announced to the public on 29 May 2015 that it launched an investigation into the incident, and following the above-mentioned developments concerning the investigation process, the applicants were summoned to the prosecutor’s office on 26 November 2015. The İstanbul Chief Public Prosecutor’s Office explained to the applicants, in brief, that “The quality of the materials found as a result of the operation carried out on the MIT TRUCKS upon a false denunciation by the armed terrorist organization should have remained secret in order to ensure the security or domestic and foreign interests of the State; however, it was revealed to the public. The task conducted by the Undersecretariat of the MIT as per Law no. 2937 was among the activities carried out in accordance with the national interests of the country. The information and photos included in the news should have remained secret in order to ensure the security or domestic and foreign interests of the State. The ultimate aim of the organization that carried out operation on the MIT trucks was to create an image, on the basis of false denunciations and evidence, that the State of the Republic of Turkey was a country supporting terrorism, and to cause it to appear before the International Criminal Court. The relevant documents had been obtained for this purpose and published to disclose the State secrets.”. Having made this explanation, the prosecutor’s office took the applicants’ statements on the matter.

18. The applicants stated that they were journalists and had been engaging in journalism for years; that they had published the news in question as a reflex of journalism; that they had had no other purpose; and that they had no links with any terrorist organization. The applicant Can Dündar accused some other persons concerning the organization asked to him. Both applicants were asked from whom they had obtained the photos they used in the news. They told that they would not disclose their journalistic source. The prosecutor’s office stated that they had determined a correspondence between two persons –who were identified-, which revealed that one day before the date on which the applicant Can Dündar published the news, the photos of the TRUCKS had been leaked in exchange for money. The applicant Can Dündar was asked whether he had obtained the photos from these persons and whether he had been offered money to publish them. He stated that he did not recognize those persons and that therefore he had no information about the correspondence between them. He again stated that he would not disclose the journalistic source.

19. On the same day, the İstanbul Chief Public Prosecutor’s Office referred the applicants to the court, requesting their detention on remand. The İstanbul  Magistrate Judge’s Office no. 7 ordered the applicants detention on remand. In its decision, the judge’s office relied on the fact that the applicants were expected to have known these activities of the terrorist organization by virtue of their profession, as well as on the grounds that they had given rise to intense public debates, and several actions had been filed on account of these activities. However, the applicants published the information and photos that should have been kept confidential to ensure the security of the State, which created a strong suspicion of their having committed the imputed offence. As regards the allegations that the incidents which were mentioned in the news published by the applicants had previously been discussed by the public and that therefore they were no longer secret, the judge’s office specified that the applicants accepted having published some documents for the first time. Consequently, the applicants were detained on remand for “aiding an armed terrorist organisation knowingly and willingly, without being a member of it”, for obtaining information that, by its nature, must be kept confidential for reasons relating to the domestic or foreign political interests of the State, for the purpose of political or military espionageand for disclosing, for the purpose of political or military espionage, the information that must be kept confidential for reasons relating to the security of the State. In addition, it was pointed out that the imputed offences fell into the scope of Article 100 § 3 (a)(11) of Law no. 5271 and that implementation of other security measures would not be sufficient.

20. The applicants appealed against the detention order. The Magistrate Judge’s Office no. 8 dismissed the applicants’ appeal. In the reasoning of its decision, the judge’s office stated that it had been announced to the public that the investigation into the trucks had been kept confidential for reasons relating to the security or domestic or foreign political interests of the State, therefore, the publication of the news by the applicants amounted to aiding and abetting the terrorist organization knowingly and willingly.

21. The bill of indictment filed by the İstanbul Chief Public Prosecutor’s Office at the end of the investigation against the applicants was accepted by the 14th Chamber of the İstanbul Assize Court on 27 January 2016 and a date was set for the hearing based on the preliminary proceedings report. On 29 February 2016 some newspapers, news portals and television channels issued information stating that the applicant Can Dündar had obtained the information subject of the said news from persons having relationship with the above-mentioned terrorist organization to publish it for his self-interest and that 3 lawyers were detained regarding the matter.

22. The applicants, in their petition for individual application, maintained that they had been engaging in journalism for many years; that they had never been found guilty within the scope of their journalistic activities; that they had made news concerning an incident having an important place on the public agenda; that the news had aimed at enlightening the public; that nevertheless, an investigation was launched against them; that they did not have access to the content of the investigation file due to a restriction order issued by the court; that although there was no strong indication of guilt which justified the detention order against them, they were detained on remand approximately six months after the investigation had been launched; and that they had never fled nor destroyed or tampered with evidence. In this regard, they alleged that their rights enshrined in Articles 19, 26 and 28 of the Constitution were violated, and they requested that the consequences of the alleged violations be redressed.

23. There is no hesitation that the freedom of expression is an essential element of democracies. There is no doubt that freedom of the press is a more sheltered area in favour of freedoms in the context of freedom of expression. In addition, both freedoms cannot be completely eliminated, but may be restricted by the criteria set forth in the Constitution and the European Convention on Human Rights.

24. Accordingly, the freedoms of expression and the press may be restricted for the purposes of “maintaining national security”, “preventing offences”, “punishing offenders”, “preventing disclosure of information duly classified as State secret” and “prevention of disclosure of confidential information of the State”, pursuant to Articles 26 § 2 and 28 § 5 of the Constitution. To that end, it is possible to criminalize, and impose punishment for, the act of disclosing confidential information of the State through press. Therefore, it is acceptable that pursuant to Article 13 of the Constitution, detention measure can be applied, during the investigation and prosecution to be carried out, in respect of press members alleged to have performed such acts. As a matter of fact, the ECHR considers that the press must perform its duties within the boundaries of the journalism ethics.

25. In addition, right to personal liberty and security is safeguarded by the Constitution. However, this right is not absolute and may be subject to limitations by law. In Article 19 of the Constitution, it is set out that everyone has the right to personal liberty and security, and that individuals may be deprived of their freedoms, provided that the procedure and conditions of detention are prescribed by law. Article 19 § 3 therein stipulates that individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention. In this context, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. Therefore, in each case, the accusation must be supported with plausible evidence. However, for accusing a person, it is not absolutely necessary that adequate evidence be available at the stage of his arrest or detention on remand. In addition to existence of justifications for detention, the criterion of lawfulness must also be met. In this sense, grounds for detention are specified in Article 100 of Law no. 5271.

26. In the present case, among the criteria for the restriction of the freedom of expression and the press, the prevailing one is the “national security” criterion, rather than the disclosure of confidential information, and this cannot be defined merely as the disclosure of confidential information classified as “State secret”. National security is a criterion the definition of which has not been made so far and the framework of which has changed according to the particular circumstances of each case. This criterion has also been broadly interpreted in some decisions of the Supreme Court of the United States that is also known for its approaches in favour of freedom. In addition, there are judgments of the ECHR where it has acknowledged that the circumstances in each country may vary. This variability is directly related to being aware of duties and responsibilities in the enjoyment of the freedom of expression, the country’s democratic experiences, geopolitical position, powers in foreign policy, terrorism problem and risk of war.

27. Thoughts, expressions or acts that do not pose a problem or get reaction in a society during an ordinary period may fall into a different scope or have different effects or get different reactions in case of extraordinary circumstances.

28. When a country is at war, it is very likely that dissidents will be regarded as traitors or unfaithful persons, due to the existing policies. An individual who perceives a threat against his own life or the lives of his relatives does not show tolerance to the dissidents during a period when his patriotism feelings are very strong and the nation has come together. The Government, on the other hand, never wants that the motivation of the enemies increases with the image of a divided country against the enemies nor that those fighting against the enemies are discouraged. For this reason, the line between being dissident and being traitor in time of war is on a very slippery ground (Assistant Professor Mehmet Emin AKGÜL, article, AUHFD, 61 (1) 2012:1-42).

29. The concept of national security is, by its very nature, subjective. The meanings attributed by the country to the concept of national security are influenced by different situations specific to that country. Therefore, the ECHR does not interpret the concept of national security in absolute terms, but it leaves a wide margin of appreciation to the national authorities by taking into consideration the specific conditions of each country. However, in this context, the ECHR sets the minimum threshold and imposes on the State the burden of proof with respect to the interference to be made with the freedom of expression for the purposes of national security. At this point, one of the issues to be taken into consideration is the fact that the State, while discharging the burden of proof, must take measures to ensure that the secrets and concerns about national security are not revealed to the public.

30. In addition, the concept of national security is a criterion where political priorities prevail. In determination of the content of the concept of national security, the political authority has the utmost priority. No one other than the political authority is expected to precisely know the delicate balances in terms of the State policies and the foreign policies. However, the political will, while enjoying this priority, is obliged to apply the criteria that will ensure the rule of law. If the authority governing the State perceives a threat against the national security and puts forward some arguments in this respect and expresses that the threat against the national security is serious, ignorance of this argument will fall foul of the duties and responsibilities within the scope of the freedom of expression. There is no doubt that sharing political internal conflicts with the public and keeping on the agenda certain issues which are related to international policies and where national interests are at stake are situations leading to different consequences.

31. The fact that prior to the present case, investigations had been launched into the incidents called “MIT TRUCKS” and there had been ongoing proceedings in this respect points out that the case is not merely related to reporting news on an issue that had previously appeared in the press. In the majority opinion, it has been underlined that the evidence pertaining to the detention order was not sufficiently evaluated in such a case concerning the freedom of the press and that there was no concrete fact substantiating the strong suspicion of guilt. However, according to the ongoing practices of the Constitutional Court, the criteria for assessment of evidence and for existence of strong suspicion of guilt differ in terms of the complaints about initial detention and the complaints about the continued detention or excessive length of detention on remand.

32. As a matter of fact, in many applications, the Constitutional Court has made the following assessments: “In addition to existence of strong suspicion of guilt, an individual may also be detained on remand for the purposes of preventing him from fleeing or destroying or tampering with evidence. Even though the initial grounds for detention may be deemed sufficient for the continuance of detention until a certain period of time, it must be explained in the decisions on the extension of the detention period that the grounds for detention are still valid, as well as the justifications thereof. In the event that these grounds are found “relevant” and “sufficient”, an assessment must be made as to whether the proceedings were conducted with due diligence or not. Factors such as complexity of the case, whether it is related to organized crimes and the number of the accused are taken into consideration in the assessment of the due diligence in question. When all these elements are considered together, a conclusion may be reached as to whether the period is reasonable or not.” (see, for example, Murat Narman, no. 2012/1137, 2 July 2013, § 63).

33. The judicial review of initial detention is limited to the assessment of whether there exists convincing evidence showing that the suspect committed an offence and of the lawfulness of detention in this sense. In this context, the existence of strong indications of having committed a crime might be sufficient for initial detention. In the present case, regard being had to the justifications of the courts’ detention order and their decisions upon the applicants’ appeal at this stage of the investigation, strong suspicion of guilt, as well as the grounds for detention cannot be said not to exist.

34. In addition, considering the period during which the concrete facts summarized above occurred, war on terrorism that will last for an indefinite period increases the possibility that the emergency measures of temporary nature will become permanent. It is not true to accept the fight against terrorism as a war. However, given the situation in our country, there exist a) a hot environment at the southern border where a number of countries are involved and border violations occur, rules of engagement are always implemented de facto and terrorists can easily enter the country under the refugee problem; b) a conflict environment in terms of the foreign policy where, for example, in the aftermath of major terrorist attacks that occurred in our country, a number of countries only sent messages of condolence from their countries and some others adopted, with various excuses, an attitude that was not in favour of our country; however, after the bombings that occurred in France, all world countries visited that country for support and condemned terrorism; and c) an environment where, in the country, there are intense debates on the fact that the Government has faced coup attempts by the police and the judiciary and where such allegations are seriously subject to investigations and prosecutions (even the Constitutional Court has adjudicated some applications concerning the alleged violations of rights in this respect). This clearly shows that the country is not within an ordinary period of fight against terrorism and that it faces multiple international political clamps.

35. Where a connection can be established between the finding that an expression may result in violence in the near future or that the real purpose of the expression is to cause such a violence and the fact that violence has occurred or may occur, it is of utmost priority to preserve the existing legal order against internal threats aiming at overthrowing the Government that is vested with the primary authority and duty to protect the country and to maintain the public order, as well as against internal threats directed towards the national security. Thus, a choice needs to be made between individual freedoms and the public order. Especially, in an environment where external threats have increased, where neighbouring states are planning to set new borders, where our cognates are directly targeted and caused to be in need of our help and where terrorism has escalated, internal conflicts against the Government leads to more concern about the national security.

36. From this aspect, it cannot be said that the domestic court did not take into consideration the balance to be struck between the broad protection afforded by freedom of the press and the national security that is accepted as the criterion for restriction. Both the bill of indictment concerning “MIT TRUCKS” –known to the public by this name- and the bill of indictment issued within the scope of investigation into the present case demonstrate that the court struck a balance between the national security and the applicants’ freedoms while ordering their detention on remand and that there was no arbitrariness or an obvious erroneous conclusion in the evaluation of evidence.

37. In addition, there is no doubt that it is duty of journalists to convey the news and ideas considered to contribute to the public interest or public debates to people, within the framework of the concept of journalism. However, while performing this duty, journalists must abide by journalism ethics. The State may impose restrictions on the news to be published by the journalists regarding a very delicate matter such as national security, as well as the public authorities may prevent the publication of certain news on such matters. At this point, there is no doubt that judicial review takes an active role and provides an essential guarantee for freedoms.

38. In the assessment of the application, acknowledgement of the fact that the applicants had been detained on remand on account of reporting news on an issue that had already been subject to news 16 months before and was no longer secret for having been discussed by the public constitutes a reductive approach. The facts underlying the detention order and the evidence in respect thereof must be examined from the point of view of the trial courts. As a matter of fact, according to the established practices of the Constitutional Court, interpretation of the legal provisions and their application to the case falls within the inferior courts’ discretionary power. Therefore, the assessments made by the inferior courts, which are not obviously arbitrary and do not include any interpretation manifestly contrary to the Constitution and the laws, must be taken into account.

39. Therefore, regard being had to the proceedings known as “MIT TRUCKS investigation” which was the starting point of the events; to the fact that a restriction order was issued on the investigation files concerning the incidents -subject-matter of the news- that occurred at the Syrian border and were directly related to the current foreign policy balance; to the fact that the applicants accepted having been informed of the restriction order; and to the issues such as the date of the news and their contents, the quality and scope of the news forming a basis for the detention order against the applicants can be revealed. In view of the considerations above and “the national security” that is accepted as the criterion for restriction, as regards the applicants’ complaints, the conclusion that the impugned news that were published again sixteen months later and formed a basis for the applicants’ detention on remand shall be subject to protection under freedom of the press cannot be considered to have been reached as a result of sufficient examinations.

40. For the reasons explained above, I consider that there have been no violations of the applicants’ right to personal liberty and security, as well as their freedoms of expression and the press, therefore I do not agree with the majority opinion.

 

 

 

DISSENTING OPINION OF JUSTICE KADİR ÖZKAYA

I. SUBJECT-MATTER OF THE APPLICATION

1. The present case concerned the alleged violations of the right to liberty and security as well as freedoms of expression and the press of the applicants Can Dündar, who was editor-in-chief of the Cumhuriyet daily newspaper, and Erdem Gül, who was the Ankara Representative of the same newspaper, due to their detention for the offences below:

a) aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”;

b) “obtaining information in possession of the State that must be kept confidential, for the purpose of political or military espionage”; and

c) “disclosing, for the purpose of espionage, the information that must be kept confidential for reasons related to the security of the State”.

II. THE FACTS

2. According to the press statement made by the İstanbul Chief Public Prosecutor’s Office on 27 November 2015, which is also available in the case file, some TRUCKS that were stated to have belonged to the National Intelligence Agency had been stopped by force of arms on 1 January 2014 and 19 January 2014 respectively in Hatay and Adana, on the ground that they had allegedly been loaded with weapons, and they had been searched by inflicting battery and violence on the members of the MIT dealing with the TRUCKS. These actions had been carried out through the instructions of Fetullah Gülen, the leader of the FETÖ/PDY Armed Terrorist Organization, and Emre Uslu, in accordance with the ultimate objective of the organization “to create an image -on the basis of false denunciations and evidence- that the State of the Republic of Turkey was a country supporting terrorism, and thus to cause the Republic of Turkey to appear before the International Criminal Court”. Therefore, an investigation was launched into the incident. At the end of the investigation, some police officers and members of the judiciary were detained for “membership of an armed terrorist organization” and “attempting to overthrow the Government of the Republic of Turkey and prevent it from performing its duties”.

3. Immediately after the MIT TRUCKS had been stopped, it was announced to the public though the statements made by the competent authorities of the State of the Republic of Turkey and through the letters sent to the relevant units within the scope of the investigation that the materials in the MIT TRUCKS that were carrying aid to Turkmens in Syria fell into the scope of activities carried out for the national interest of the country in accordance with the duties and authorities granted to the Undersecretariat of the MIT by the State Intelligence Services and the National Intelligence Organization Act no. 2937 and that “they, by their very nature, needed to remain confidential for reasons related to the security of the State, as well as the State’s domestic and foreign political interests”.

4. In addition, the followings were inferred from the relevant available documents before our Court:

a) Concerning the incident underlying the detention order that is subject to the application, the 21 January 2014 issue of the Aydınlık newspaper contained the news titled “Here is the ammunition in the TRUCK (İşte TIR'daki Cephane)". The news included the claims that “Ammunition was found in 3 TRUCKS belonging to the MIT that were stopped in Adana. The Aydınlık newspaper has reached the photos of the search. It was determined that the TRUCKS were not carrying “humanitarian materials”, but cannon balls.” On the same day, the news titled “Aydınlık reaches the photo of the ammunition: that is no small matter, but cannon ball (Aydınlık mühimmatın fotoğrafına ulaştı: boru değil top mermisi)” was published on the website of the same newspaper with the same content. The news also contained a photo of the cannon balls alleged to have been found in one of the cases in the TRUCKS. The same and the next issues of the newspaper also included the comments of some authors on the materials alleged to have been carried by the TRUCKS.

b) Approximately 1 year and 4 months after the incident concerning the TRUCKS alleged to have been stopped by force of arms and searched although it had been stated that they had belonged to the MIT, Can Dündar published, on the 29 May 2015 issue of the Cumhuriyet newspaper, the news with the titles and contents such as “THE PHOTOS THAT WILL CREATE A TREMENDOUS IMPRESSION ON THE WORLD’S AGENDA ARE PUBLISHED FOR THE FIRST TIME (DÜNYA GÜNDEMİNİ SARSACAK GÖRÜNTÜLER İLK KEZ YAYIMLANIYOR)”, “Here are the weapons Mr. Erdoğan says do not exist (İşte Erdoğan'ın yok dediği silahlar)”, “MIT TRUCKS ARE FULL OF WEAPONS (MİT TIR’LARI AĞZINA KADAR SİLAH DOLU)”, “THE PUBLIC PROSECUTOR WAS PREVENTED (SAVCI ENGELLENDİ)”, “WEAPONS TO SYRIA (SURİYE’YE SİLAH)”, “LIST OF THE WEAPONS IN THE MIT TRUCKS (MİT TIRINDAN ÇIKAN SİLAHLARIN DÖKÜMÜ)”, “They were hidden under the medicines (İlaçların altına gizlenmiş)”, “Mr Takçı says: MİT does not have such duty (Takçı: MİT’in böyle bir görevi yok)”, “WHY DO WE PUBLISH? (NEDEN YAYIMLIYORUZ?), “They said they were carrying medicine (İlaç taşıyor dediler)” – “They said they were taking aid to the Turkmens (Türkmenlere yardım götürüyordu dediler)” – “They persistently denied allegations of weapons (Silah iddiasını ısrarla reddettiler)” – “They took into custody the public prosecutor who had stopped the TRUCK and the gendarmerie commander who had searched it (TIR’ı durduran savcıyı, arayan jandarma komutanını gözaltına aldılar)”, “However, in the end, the photos of the weapons to be taken to Syria in the TRUCK that belonged to the MIT have been revealed (Ama sonunda MİT’e ait TIR içinde Suriye'ye götürülen silahların görüntüleri ortaya çıktı)” and “HERE ARE THOSE WEAPONS (İŞTE O SİLAHLAR)”.

c) Following the news reported by Can Dündar in the 29 May 2015 issue of the Cumhuriyet newspaper, the news titled “Cumhuriyet reaches the photos 16 months later – GOOD MORNING! (Cumhuriyet 16 Ay Sonra Görüntülere 'UlaŞtı' - GÜNAYDIN!)” was published on the same day on the website of the Aydınlık newspaper. According to the content of the news, the Aydınlık newspaper had for the first time, namely two days after the incident, published the photos, which was later published in the Cumhuriyet newspaper. It was underlined that the photos were not published in the Cumhuriyet newspaper for the first time. The 30 May 2015 issue of the Aydınlık newspaper had also reported similar news”.

d) Upon the publication of the news reported by Can Dündar, the İstanbul Chief Public Prosecutor’s Office announced to the public on 29 May 2015 that pursuant to Articles 327, 328 and 330 of the Turkish Criminal Code no. 5237, dated 26 September 2004, as well as Articles 6 and 7 of the Anti-Terror Law no. 3713, dated 12 April 1991, an investigation was launched for the offences such as “obtaining information related to the security of the State, conducting political and military espionage, disclosing information that must be kept confidential and making propaganda of a terrorist organization”.

e) On the same date, the İstanbul Chief Public Prosecutor’s Office also requested from the incumbent court that pursuant to Article 8 (a) of Law no. 5651 on Regulating Broadcasting in the Internet and Fighting against Crimes Committed through Internet Broadcasting, dated 4 May 2007, access to the contents of the news be blocked and that in the event that the contents in question were not removed, access to the relevant websites be completely blocked. The İstanbul Magistrate Judge’s Office no. 8, on the same day, by a decision miscellaneous no. 2015/1330 and dated 29 May 2015, ordered the blocking of access to the news in question, on the ground that they might lead to an inconvenient situation as regards the national and international interests, as well as, national security of the Republic of Turkey.

f) While the investigation launched on 29 May 2015 was still pending, the applicant Erdem Gül reported news titled “Dirty operation (Kirli operasyon)” in the 11 June 2015 issue of the Cumhuriyet newspaper. The İstanbul Chief Public Prosecutor’s Office considered that the news in question served the ultimate objective of the FETÖ/PDY armed terrorist organization.

g) While the investigation was still pending, the applicant Erdem Gül reported news in the 12 June 2015 issue of the Cumhuriyet newspaper, by referring to the Gendarmerie Criminal Analysis reports concerning the MIT TRUCKS in question. The news contained the titles “THE GENDARMERIE REVEALS THE WEAPONS IN THE MIT TRUCKS THAT MR. ERDOĞAN SAYS EXIST OR NOT - Gendarmerie says they exist (ERDOĞAN’IN VAR YA DA YOK DEDİĞİ MİT TIR’LARINDAKI SİLAHLARI JANDARMA TESCİLLEDİ - Jandarma var dedi)”, “LETHAL WEAPONS (ÖLDÜRÜCÜ SİLAHLAR)”, “PRODUCED IN RUSSIA (ÜRETİM YERİ RUSYA)” and “Gendarmerie confirms the lethal weapons (Jandarma   öldürücü   silahları doğruladı)” and also included detailed explanations. The photos of the weapons and ammunition alleged to have been in the TRUCKS were published within the contents of the news.

h) While the same investigation was still pending, the applicant Erdem Gül reported news in the 15 October 2015 issue of the Cumhuriyet newspaper, titled “… the hand that feeds you! (Besle kargayı …)”. The İstanbul Chief Public Prosecutor’s Office again considered that the said news served the ultimate objective of the FETÖ/PDY armed terrorist organization.

i) Following these developments and approximately six months after the announcement to the public that an investigation was launched, the applicants Can Dündar and Erdem Gül were summoned by phone on 26 December 2015 to have their statements taken. They were charged with “obtaining information that, by its nature, must be kept confidential for reasons related to the security or domestic or foreign political interests of the State, for the purpose of political or military espionage”, “disclosing information that, by its nature, must be kept confidential for reasons related to the security or domestic or foreign political interests of the State, for the purpose of political or military espionage” and “aiding the FETÖ/PDY armed terrorist organisation knowingly and willingly, without being a member of it”.

5. The questions addressed to the applicant Can Dündar at the İstanbul Chief Public Prosecutor’s Office on 26 November 2015 and his response to these questions were as follows:

"...

2- It was announced to the public through the statements made by the competent authorities of the State of the Republic of Turkey that during the operations that were carried out within the scope of the investigations against the so-called Jerusalem Army Terrorist Organization, on 1 January 2014 and 19 January 2014 respectively in Kırıkhan District of Hatay Province and Ceyhan District of Adana Province, upon false denunciations made in accordance with the instructions of Fetullah Gülen, the leader of the FETÖ/PDY Armed Terrorist Organization, and Emre Uslu, the heads and members of the FETÖ/PDY stopped and searched the MIT trucks by using arms and inflicting battery and violence on the members of the MIT. It was further announced that the aid materials in the MIT TRUCKS that were carrying aid to Turkmens in Syria, by their very nature, needed to remain confidential for reasons related to the security of the State, as well as the State’s domestic and foreign political interests.

Furthermore, by the letter of the National Intelligence Organization no. 112-54128131 and dated 6 February 2014, it was indicated that the trucks served the activities carried out for the national interests of the country in accordance with the duties and authorities granted to the Undersecretariat of the MIT under Law no. 2937 on the State Intelligence Services and the National Intelligence Organization.

It has been understood that, despite these, within the scope of the news titled “Here are the weapons Mr. Erdoğan says do not exist (İşte Erdoğan'ın yok dediği silahlar)” reported by you in the 29 May 2015 issue of the Cumhuriyet newspaper of which you are the editor-in-chief; you obtained and disclosed the information and photos related to the trucks -belonging to the National Intelligence Organization and carrying aid as a State secret- that were stopped on 19 January 2014 in Ceyhan District of Adana Province, which should have remained confidential for the security or domestic or foreign political interests of the State. You obtained and disclosed these information and photos to serve the ultimate objective of the FETÖ/PDY armed terrorist organization, namely to create an image -on the basis of false denunciations and evidence- that the State of the Republic of Turkey was a country supporting terrorism, and thus to cause the Republic of Turkey to appear before the International Criminal Court.

Where and from whom did you obtain these photos? Why did you publish them? Did you receive any instruction from anyone to publish these information and photos?

REPLY:

I have been a journalist for 35 years. I worked as an author and editor-in-chief for various newspapers. I have no connection whatsoever with the formation you called as the FETÖ/PDY Armed Terrorist Organization. I have no relationship with Fetullah Gülen or Emre Uslu. I am the victim of the investigation you are conducting against me right now. In fact, as a member of the press, I have always mentioned the risks of such formations within the State for years. The headline I used in my newspaper about the incident called as the stopping of MIT trucks in Adana was totally part of the journalistic activities. Apart from this, I definitely have no relation with espionage or aiding an organization or any other offence. In fact, those who had told, addressing the formation you called as the FETÖ, that “We have given whatever they wanted” should be tried. The news that I reported solely fall into the scope of journalistic activities. What occurred in Susurluk and to which extent the activities called as the State secret have reached are obvious. At the same time, as an academic member, I prepared my master’s thesis on “State secret”. I am in a position to assess what is secret or not. It is also a desperate situation that two institutions of the State have fallen out with each other due to this incident. As a journalist, this event is newsworthy for me. My purpose is to warn and inform the public. At the same time, it is also in the interest of the State to prevent a number of errors. As a matter of fact, similarly, within the scope of the events known as Watergate and Irangate scandals, the journalists were tried to be subject to criminal proceedings due to the news they had reported, which had been considered as State secret. However, after years, those who had carried out the impugned operations on behalf of the State were tried and convicted. By virtue of the journalism ethics, I cannot tell how I obtained these information and documents. However, I can say that no one or no organization can give me any instruction in this regard. I have never experienced this throughout my professional life. What I do is completely a journalistic activity.

4- It was established that one day before the publication of the news reported by you, there had been a correspondence between E.E. and B.K., which stated “The photos of the MIT trucks have been leaked in exchange for money”.

Did you receive the photos from these persons? Were you offered money to publish them?

REPLY:

I do not recognize those persons. Neither do I have information about the correspondence you have mentioned. In any case, the newspaper was published. I do not want to disclose the source of the news, but I can say that she/he has no relationship with the community (cemaat).

These photos relate to the news reported in the Aydınlık newspaper on 21 January 2014. However, some of them are different. They are newsworthy. Therefore, what I have done is a journalistic activity. I have had no other aim.

…”

6. The questions addressed to the applicant Erdem Gül at the İstanbul Chief Public Prosecutor’s Office on 26 November 2015 and his response to these questions were as follows:

"...

2- It was announced to the public through the statements made by the competent authorities of the State of the Republic of Turkey that during the operations that were carried out within the scope of the investigations against the so-called Jerusalem Army Terrorist Organization, on 1 January 2014 and 19 January 2014 respectively in Kırıkhan District of Hatay Province and Ceyhan District of Adana Province, upon false denunciations made in accordance with the instructions of Fetullah Gülen, the leader of the FETÖ/PDY Armed Terrorist Organization, and Emre Uslu, the heads and members of the FETÖ/PDY stopped and searched the MIT trucks by using arms and inflicting battery and violence on the members of the MIT. It was further announced that the the aid materials in the MIT TRUCKS that were carrying aid to Turkmens in Syria, by their very nature, needed to remain confidential for reasons related to the security of the State, as well as the State’s domestic and foreign political interests.

Furthermore, by the letter of the National Intelligence Organization no. 112-54128131 and dated 6 February 2014, it was indicated that the trucks served the activities carried out for the national interests of the country in accordance with the duties and authorities granted to the Undersecretariat of the MIT under Law no. 2937 on the State Intelligence Services and the National Intelligence Organization.

It has been understood that, despite these, within the scope of the news titled “Gendarmerie says they exist (Jandarma var dedi)” reported by you in the 12 June 2015 issue of Cumnhuriyet daily newspaper; you obtained and disclosed the information and photos related to the materials in the trucks -belonging to the National Intelligence Organization and carrying aid as a State secret- that were stopped on 19 January 2014 in Ceyhan District of Adana Province, which should have remained confidential for the security or domestic or foreign political interests of the State. You obtained and disclosed these information and photos to serve the ultimate objective of the FETÖ/PDY armed terrorist organization, namely to create an image -on the basis of false denunciations and evidence- that the State of the Republic of Turkey was a country supporting terrorism, and thus to cause the Republic of Turkey to appear before the International Criminal Court.

Where and from whom did you obtain these photos? Why did you publish them? Did you receive any instruction from anyone to publish these information and photos?

REPLY:

I have been a journalist for 20-25 years. As you know, I cannot disclose my source. Therefore, I am sorry that I cannot give any information in this regard. I graduated from the School of Press and Broadcasting. I am a journalist of Ankara. I underline this, because Ankara journalists deals with the State bureaucracy. I published the impugned news automatically. I have no illegal purpose. I am a journalist and I publish everything that is newsworthy. I have never carried out any activities in accordance with the objectives of any organization or formation. While publishing this news, I did not act in favour of or against anyone. My purpose is to inform the people. I cannot exactly remember the name of B.K. I know E.E. from the social media. I did not meet both of them.

I want to again express that what I did was due to journalism reflex. I cannot consider events like a public prosecutor or a judge. I have had no intention of committing a crime or aiding an organization.

…”

7. The counsels of the applicants submitted, in brief, that the applicants’ act was related to the news published by them and that the condition stipulated in Article 26 of the Press Law no. 5187 dated 9 June 2004 was not satisfied. The relevant provision required that criminal cases regarding the offences committed through printed works should be filed within four months.

8. On the same day, the İstanbul Chief Public Prosecutor’s Office requested the applicants’ detention on remand, for “aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”, “obtaining information in possession of the State that must be kept confidential, for the purpose of political or military espionage” and “disclosing, for the purpose of espionage, the information that must be kept confidential for reasons related to the security of the State”.

9. The applicants made submissions before the magistrate judge’s office, which were similar to their statements before the chief public prosecutor’s office.

10. On 26 November 2015, the İstanbulMagistrate Judge’s Office no. 7, by a decision no. 2015/490, ordered the applicants’ detention on remand for “aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”, “obtaining information in possession of the State that must be kept confidential, for the purpose of political or military espionage” and “disclosing, for the purpose of espionage, the information that must be kept confidential for reasons related to the security of the State”.

11. The reasoning of the magistrate judge’s office in ordering the applicant Can Dündar’s detention on remand is as follows:

“a) … Concerning the imputed offence of aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it, regard being had to the available evidence; to the fact that the Adana and İstanbul Chief Public Prosecutor’s Offices launched investigations into the incident in which the MIT trucks were stopped on 1 January 2014 and 19 January 2014 and against those involved in this operation; to the fact that by virtue of his profession, the suspect was in a position to have information about these investigations, however, despite the investigation conducted by the Istanbul Chief Public Prosecutor’s Office into the organization, the suspect published the documents concerning the MIT trucks that needed to remain confidential for reasons related to the security of the State, as well as the State’s domestic and foreign political interests; to the fact that the suspect’s act falls into the scope of Articles 220 § 7 and 314 § 2 of the Turkish Criminal Code (“the TCC”) and therefore there exists a strong suspicion of having committed the imputed offence; to the fact that the imputed offence falls into the scope of Article 100 § 3 (a)(11) of the Code of Criminal Procedure (“the CCP”); and to the fact that application of the provisions related to conditional bail will be insufficient, the suspect will be DETAINED in accordance with Article 100 and following Articles of the CCP;

b) … Concerning the imputed offence of obtaining information in possession of the State that must be kept confidential, for the purpose of political or military espionage, regard being had to the available evidence; to the fact that although the suspects and their defence counsels stated that the subject-matter of the document concerning the MIT trucks, which they obtained and published, had previously been discussed by the public and therefore they were no longer secret, the relevant document had been obtained by the suspect for the first time, as also accepted by him, and therefore there exists a strong suspicion of having committed the imputed offence; to the fact that the imputed offence falls into the scope of Article 100 § 3 (a)(11) of the Code of Criminal Procedure (“the CCP”); and to the fact that application of the provisions related to conditional bail will be insufficient, the suspect will be DETAINED in accordance with Article 100 and following Articles of the CCP;

c) … Concerning the imputed offence of disclosing, for the purpose of espionage, the information that must be kept confidential for reasons related to the security of the State, regard being had to the available evidence; to the fact that in addition to the printed works, the applicant also published the information that needed to remain confidential for reasons related to the security of the State on the internet; to the fact that although the suspects and their defence counsels stated that the subject-matter of the document concerning the MIT trucks, which they obtained and published, had previously been discussed by the public and therefore they were no longer secret, the relevant document was published by the suspect for the first time, as also accepted by him, and therefore there exists a strong suspicion of having committed the imputed offence; to the fact that the imputed offence falls into the scope of Article 100 § 3 (a)(11) of the Code of Criminal Procedure (“the CCP”); and to the fact that application of the provisions related to conditional bail will be insufficient, the suspect will be DETAINED in accordance with Article 100 and following Articles of the CCP;

…”

12. The decision and its reasoning issued with respect to the applicant Erdem Gül by the İstanbul  Magistrate Judge’s Office no. 7 is the same with the above-mentioned reasoning with respect to the applicant Can Dündar and is cited in the same decision.

13. The applicants appealed against the above-mentioned decision. The İstanbul Magistrate Judge’s Office no. 8, by a decision miscellaneous no. 2015/1330 and dated 1 December 2015, dismissed the applicants’ request. The reasoning of the decision is as follows:

“As it is understood that the offence of aiding and abetting the FETÖ/PDY Armed Terrorist Organisation knowingly and willingly without being a member of it, which is imputed to the suspects, (Article 314 § 2 of the TCC with reference to Article 220 § 7 thereof) is among the offences listed in Article 100 of the CCP which provides that the risk of fleeing and tampering with evidence may be deemed as existing if there is a strong suspicion that these offences were committed; that on 1 January 2014 and 19 January 2014, respectively in Kırıkhan District of Hatay Province and Ceyhan District of Adana Province, the members of the terrorist organization, who are still detained, stopped and searched the MIT trucks, through false denunciations and instructions, by using arms and inflicting battery and violence; that an image that the State of the Republic of Turkey was supporting terrorism was tried to be created in the international arena; that this image was supported by the news, articles and screenplays released through the press; that although it was announced to the public that the activities of the MIT carried out for the national interests of the country, by their very nature, needed to remain confidential for reasons related to the security of the State, as well as the State’s domestic and foreign political interests, the suspects published the impugned information and photos within the scope of the news they reported in the Cumhuriyet newspaper on 29 May 2015, 11 June 2015, 12 June 2015 and 15 October 2015; that as also stated by the suspects, although certain news had been reported on the same matter before, the photos were published for the first time by the suspects, as well as, the same contents were also published on the internet; that in this way, the suspects knowingly and willingly served the objective of the FETÖ/PDY Armed Terrorist Organization to create an image that the State of the Republic of Turkey and its heads supported terrorism and thereby to cause them to appear before the International Criminal Court; that the suspects did not give information as to how they obtained the relevant information, photos and documents; that they obtained and disclosed these documents that should have remained confidential, for the purpose of espionage; that their acts cannot be considered within the scope of journalism; that Article 11 of the Press Law regulates the criminal liability, and while reporting the news, journalists are also required to abide by the laws and judicial decisions of the State where they live as citizens; and that regard also being had to the statements of the suspects and the content of the news reported by them, there exists evidence justifying the strong suspicion of guilt, and considering the imputed offences and the sentence stipulated by the law, the suspects’ detention on remand constitutes a proportionate measure; therefore, in accordance with the procedure and the law… the suspects’ appeal… is dismissed.”  

14. Upon the dismissal of their appeal, the applicants lodged an individual application on 4 December 2015.

15. The applicants’ subsequent appeals against the detention order were dismissed on 11 December 2015, 25 December 2015 and 7 January 2016 respectively by the İstanbul Magistrate Judge’s Office no. 6, the İstanbul Magistrate Judge’s Office no. 2 and the İstanbul Magistrate Judge’s Office no. 3. The request submitted by the İstanbul Chief Public Prosecutor’s Office on 25 December 2015 for the applicants’ continued detention was accepted by the İstanbul Magistrate Judge’s Office no. 8 on 25 December 2015. The applicants’ appeal against this decision was dismissed by the İstanbul Magistrate Judge’s Office no. 9 on 13 January 2016. On the date of examination of their individual application, the applicants were still detained on remand.

III. THE RELEVANT LAW

16. As the relevant legal provisions are cited in the judgment on which we partly agreed, they will not be cited again.

IV. EXAMINATION

17. The Applicants’ Allegations:

The applicants maintained that they had been engaging in journalism for many years; that they had never been found guilty for their news, documentaries or articles during the period they worked as journalists; that the incident related to the stopping of trucks had been an issue on the public agenda; that this issue had also been mentioned in many television news and other newspapers and that even many politicians had made statements on this issue; that the news they had made as to whether the trucks had been carrying weapons and as to where they had been going, which had an important place on the public agenda, aimed at enlightening the public; that although it had been stated that an investigation had been launched against them following the impugned news they had made, they could not effectively apply to a judicial authority due to a restriction order that had been issued within the scope of the investigation; that their statements were taken and they were detained on remand six months after the opening of the investigation and publication of the impugned news; that there was no strong indication of guilt which justified the detention order against them; and that they had never fled nor destroyed or tampered with evidence. In this regard, the applicants alleged that their right to personal liberty and security enshrined in Article 19 of the Constitution, as well as, their freedoms of expression and the press stipulated in Articles 26 and 28 of the Constitution were violated, and they requested that the consequences of the alleged violations be redressed.

18.  Admissibility of the Alleged Unlawfulness of Detention on Remand and Alleged Violations of the Freedoms of Expression and the Press:

19. We agree with the conclusion that the alleged unlawfulness of the applicants’ detention on remand and alleged violation of their freedoms of expression and the press must be declared admissible for not being manifestly ill-founded and there being no other grounds to declare them inadmissible.

20. Merits:

21. We exactly agree with the explanations, which were made by the majority in the general judgment, concerning the lawfulness of detention on remand as a measure, the scope of Article 19 of the Constitution, the general principles on the freedoms of expression and the press and the grounds for the restriction of these freedoms.

22. However, for the reasons explained below, we do not agree with the assessments made in terms of the application of these general principles to the present case, as well as the violation found.

23. As stated in many judgments of the Court, as long as the rights and freedoms enshrined in the Constitution are not violated, in other words, there is no interpretation obviously contrary to the Constitution and there is no obvious arbitrariness in the evaluation of evidence, which results in the violation of the rights and freedoms, the inferior courts’ conclusions, their interpretations of the legal provisions or issues as to factual or legal errors cannot be subject to examination within the scope of individual application. In this context, it is solely within the inferior courts’ discretionary power to interpret legal provisions on detention and apply them to the case at hand.

24. In the present case, the applicants did not lodge an application challenging the unreasonable length of their detention on remand, but the “initial detention” order against them.

25.  From the date on which the individual application procedure was introduced until today, in the judicial review of all applications challenging the initial detention order, it has been accepted that existence of strong indication of guilt might be deemed sufficient (see Hidayet Karaca [Plenary], no. 2015/144; and İzzet Alpergin [Plenary], no. 2013/385). As regards the allegations challenging initial detention, unlike the allegations challenging unreasonable length of detention, an examination shall be made solely on the existence of strong indication of guilt and on the lawfulness of detention. Unless there is no obvious erroneous conclusion or arbitrariness, the court’s discretionary power in determining the grounds for initial detention will not be subject to examination. In this respect, no decision of violation has been rendered until today.

26. Accordingly, while scrutinizing the detention order that is the subject-matter of the present application, the grounds relied on by the judge issuing the detention order and the justifications given, it must be taken into consideration that the decision that is the subject-matter of the application is an initial detention order against the applicants.

27. The majority of our Court concluded that the applicants’ right to personal liberty and security safeguarded by Article 19 of the Constitution and their freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution were violated on the following grounds:

The main fact forming a basis for the detention order against the applicants was the publication, in the Cumhuriyet newspaper, of the news concerning the TRUCKS that had been stopped and searched. In the detention order, it was stated that the available evidence pertaining to the imputed offence was sufficient for the applicants’ detention on remand, however, no evidence was mentioned other than the impugned news. The applicants were charged with the offences of publishing the photos and information that are the subject-matter of the news for the purpose of “aiding and abetting an armed terrorist organisation knowingly and willingly” and obtaining and disclosing them “for the purpose of political and military espionage”. However, in the reasoning of the detention order, it was not explained which concrete facts attributable to the applicants led to the strong suspicion of guilt concerning the publication of the said news for “political and military espionage purposes”. With regards to strong suspicion of guilt concerning “aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”, the grounds of detention order did not provide any concrete facts other than the opinion that “by virtue of their profession, the applicants were expected to have known that the news they had published had been related to a terrorist organization against which there had been an ongoing investigation”. The news published in another newspaper on 21 January 2014, two days after the stopping and search of the trucks, included a photo and some information pertaining to the materials alleged to be carried by the trucks. In addition to the abstract discussions by the public on what was in the trucks, the fact that similar photos and information had been published approximately sixteen months before the imputed news and that even on the date of examination of the application file they were easily accessible on the internet must be taken into consideration in the determination of the existence of a strong suspicion of guilt. In this context, whether the publication of the news similar to a previously published one continued to pose a threat against national security must be specified in the grounds of the measures to be applied with respect to the impugned news. During approximately six-month period from the first announcement of the investigation until the date when the applicants were summoned to have their statements taken, the İstanbul Chief Prosecutor’s Office did not take the applicants’ statements, and no measure was implemented against the applicants such as custody or detention on remand. The questions addressed to the applicants and the grounds for their detention did not reveal any evidence –apart from the news published– collected throughout the said period substantiating the allegation that they had committed the crimes they were charged with. Accordingly, the circumstances of the case and the grounds of the detention order did not sufficiently put forth why it was “necessary” to place the applicants in detention on remand approximately six months after an investigation into the said news had been launched and without considering that similar news concerning an incident giving rise to intense public discussions had also been published several months before. In addition, regard being had to the assessments on the lawfulness of the applicants’ detention on remand and considering that the only fact taken as a basis for the charges against the applicants was the publication of the relevant news, a severe measure such as detention, which did not meet the criteria of lawfulness, cannot be considered proportionate and necessary in a democratic society. Furthermore, the applicants were detained approximately six months after an investigation into the impugned news had been launched and without considering that similar news had been published sixteen months before in another newspaper, which constituted an interference with their freedoms of expression and the press. The circumstances of the present case and the grounds of the detention order did not put forth any “pressing social need” that gave rise to such an interference and its necessity in a democratic society to ensure the national security.

28. As also stated by the majority, while the European Court of Human Rights (“the ECHR”) points out that a restriction can be imposed on the publication of information for reasons related to the national security, it underlines that in order to prevent any violation, such a restriction must be necessary in a democratic society as well as it must serve a pressing social need. In this respect, the ECHR considers that the confiscation of books, magazines, newspapers, and etc. which include information in the form of State secret and disclosure of which prejudices the national security is in breach of Article 10 of the Constitution, on the ground that where these publications have already been accessed and thus have become public, such an interference is no longer necessary in a democratic society, as well as there is no pressing social for the interference. In one of its judgments, the ECHR specified that the State’s interlocutory injunctions granted prior to the publication of a book including information in the form of State secret might be justified; however, since the book had first been published in the USA and then in England, these interlocutory injunctions have become meaningless. According to the ECHR, the interference in question was no longer necessary in a democratic society after it had been published (Zeynep Hazar; BASIN ÖZGÜRLÜĞÜ VE ULUSAL GÜVENLİK, Gazi Üniversitesi Hukuk Fakültesi Dergisi, Volume: XVII, Y.2013, pp.1-2).

29. In the present case, the subject-matter of the news published by the applicants, which related to the MIT TRUCKS, had been the subject of the news in another newspaper 1 year and 4 months before, and therefore it had previously been discussed by the public, and thus had become public. Accordingly, when considered from solely this point of view, the imputed act of “disclosing the confidential information” did not materialize, and therefore, in merely this context, the applicants’ detention on remand was in breach of their freedoms of expression and the press.

30. In the present case, the issue that is the subject-matter of the case had been subject to the news published in another newspaper sixteen months before. It had given rise to public debates, had been subject to judicial proceedings and had been announced to the public that the impugned issue, by its very nature, “should have remained confidential for reasons related to the security of the State, as well as the State’s domestic and foreign political interests”. Besides, although it was described by the applicants as “an issue that would create a tremendous impression on the world’s agenda”, except for the news that had been published in another newspaper sixteen months before, no media outlet published news on this issue during the sixteen months. As sixteen months passed, the impugned issue was no longer of a current nature in terms of journalism. Nevertheless, having been the subject-matter of the news that had been published in another newspaper before, the impugned issue was again put on the public agenda with a different content by the applicants. Accordingly, the impugned news made by the applicants cannot be interpreted, without elaborating the causes and effects in terms of “national security”, as solely reporting of news on an issue that had already been published in another newspaper before, within the scope of freedoms of expression and the press, regard being also had to the fact that the grounds for the applicants’ detention on remand were “aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”, “obtaining information in possession of the State that must be kept confidential, for the purpose of political or military espionage” and “disclosing, for the purpose of espionage, the information that must be kept confidential for reasons related to the security of the State” and considering the facts and developments surrounding the incident.

31. As a matter of fact, “national security” is one of the reasons for restricting the freedom of the press, which is a special aspect of the freedom of expression, in the Turkish law, the European Convention on Human Rights and the U.S. law. Restriction of the freedom of the press for reasons related to the national security falls into the category of the protection of the State and the society.

32. The ECHR, while interpreting the concept of national security, does not disregard the different situations specific to each country, and it leaves a wide margin of appreciation to the national authorities by taking into consideration the specific conditions of each country. However, in this context, the ECHR sets the minimum threshold and imposes on the State the burden of proof with respect to the interference to be made with the freedom of expression for the purposes of national security. At this point, it underlines that the State, while discharging the burden of proof, is allowed to take reasonable measures to ensure that the secrets and concerns about national security are not revealed to the public.

33. The magistrate judge, while ordering the applicants’ initial detention, might have taken into consideration the fact that the news subject-matter of the present case, beyond contributing to the national public debates, might have intended to threaten the national security by impairing the State’s foreign strategies or to incriminate the State, by always keeping the impugned issue on the agenda, especially in international sphere, thus the offence of “aiding the FETÖ/PDY armed terrorist organisation knowingly and willingly, without being a member of it” might have been committed as charged (independently of the outcome of the proceedings carried out/to be carried out against the applicants). This probable consideration of the magistrate judge has not been taken into account. The Court has concluded that the grounds for the detention order were not sufficient; that why such a measure had been deemed necessary could not be understood in the circumstances of the present case and from the grounds of detention; and that which “pressing social need” had led to an interference with the freedoms of expression and the press by detention on remand and whether it was necessary in a democratic society for the protection of national security could not be understood in the circumstances of the present case and from the grounds of detention. Accordingly, the Court has failed to make a broad assessment in terms of the magistrate judge’s considerations.

34. In addition, freedom of expression and the press and freedom to receive and impart information are certainly applicable also to the issues disturbing the State. However, in view of the information and documents available in the file, the following conclusions were reached in the present case:

Neither the İstanbul Magistrate Judge’s Office no. 7, while ordering the applicants’ detention on remand, nor the İstanbul Magistrate Judge’s Office no. 8, while dismissing the applicants’ appeal against the detention order issued against them, considered the incident solely as the publication of the said news.

a) Some TRUCKS that were later stated to have belonged to the National Intelligence Agency had been stopped by force of arms on 1 January 2014 and 19 January 2014 respectively in Hatay and Adana. They had been searched by inflicting battery and violence on the members of the MIT dealing with the TRUCKS. Those who had searched the TRUCKS had reported that the TRUCKS had been carrying weapons and ammunition, they had recorded the search and the issue had been brought to the national and international public attention;

b) Immediately after the developments, an investigation was launched and it was announced to the public though the statements made by the competent authorities of the State of the Republic of Turkey and through the letters sent to the relevant units that the materials in the MIT TRUCKS that were carrying aid to Turkmens in Syria fell into the scope of activities carried out for the national interest of the country in accordance with the duties and authorities granted to the Undersecretariat of the MIT by the  State Intelligence Services and the National Intelligence Organization Act no. 2937 and that “they, by their very nature, needed to remain confidential for reasons related to the security of the State, as well as the State’s domestic and foreign political interests”.

c) It was found out that these actions had been carried out through the instructions of Fetullah Gülen, the leader of the FETÖ/PDY Armed Terrorist Organization, and Emre Uslu, in accordance with the ultimate objective of the organization “to create an image -on the basis of false denunciations and evidence- that the State of the Republic of Turkey was a country supporting terrorism, and thus to cause the Republic of Turkey to appear before the International Criminal Court”. Therefore, an investigation was launched into the incident. At the end of the investigation, some police officers and members of the judiciary were detained for “membership of an armed terrorist organization” and “attempting to overthrow the Government of the Republic of Turkey and prevent it from performing its duties”.

d) In spite of this, approximately 1 year and 4 months after the incident, on the 29 May 2015, news was published on the relevant issue -the topicality of which became highly questionable due to the time elapsed- with the titles and contents such as “THE PHOTOS THAT WILL CREATE A TREMENDOUS IMPRESSION ON THE WORLD’S AGENDA ARE PUBLISHED FOR THE FIRST TIME (DÜNYA GÜNDEMİNİ SARSACAK GÖRÜNTÜLER İLK KEZ YAYIMLANIYOR)”, “Here are the weapons Mr. Erdoğan says do not exist (İşte Erdoğan'ın yok dediği silahlar)”, “MIT TRUCKS ARE FULL OF WEAPONS (MİT TIR’LARI AĞZINA KADAR SİLAH DOLU)”, “THE PUBLIC PROSECUTOR WAS PREVENTED (SAVCI ENGELLENDİ)”, “WEAPONS TO SYRIA (SURİYE’YE SİLAH)”, “LIST OF THE WEAPONS IN THE MIT TRUCKS (MİT TIRINDAN ÇIKAN SİLAHLARIN DÖKÜMÜ)”, “They were hidden under the medicines (İlaçların altına gizlenmiş)”, “Mr Takçı says: MİT does not have such duty (Takçı: MİT’in böyle bir görevi yok)”, “WHY DO WE PUBLISH? (NEDEN YAYIMLIYORUZ?), “They said they were carrying medicine (İlaç taşıyor dediler)” – “They said they were taking aid to the Turkmens (Türkmenlere yardım götürüyordu dediler)” – “They persistently denied allegations of weapons (Silah iddiasını ısrarla reddettiler)” – “They took into custody the public prosecutor who had stopped the TRUCK and the gendarmerie officer who had searched it (TIR’ı durduran savcıyı, arayan jandarma komutanını gözaltına aldılar)”, “However, in the end, the photos of the weapons to be taken to Syria in the TRUCK that belonged to the MIT have been revealed (Ama sonunda MİT’e ait TIR içinde Suriye'ye götürülen silahların görüntüleri ortaya çıktı)” and “HERE ARE THOSE WEAPONS (İŞTE O SİLAHLAR)”.

e) It was emphasized in the impugned news that the photos published would “create a tremendous impression on the world’s agenda” and that they were “published for the first time”. The applicant Can Dündar, in his statement, told that “These photos relate to the news reported in the Aydınlık newspaper on 21 January 2014. However, some of them are different.”. Although he stated that the published photos were related to the news that had previously published in the Aydınlık newspaper, he did not tell that they were exactly the same information and photos, in other words, he did not tell that he had quoted from the Aydınlık newspaper. He was asked “It was established that one day before the publication of the news reported by you, there had been a correspondence between E.E. and B.K., which stated “The photos of the MIT trucks have been disclosed leaked in exchange for money”. Did you receive the photos from these persons? Were you offered money to publish them?”. He replied “I do not recognize those persons. Neither do I have information about the correspondence you have mentioned. In any case, the newspaper has been already published. I do not want to disclose the journalistic source…”.

f) On 29 May 2015, the İstanbul Chief Public Prosecutor’s Office requested from the incumbent court that pursuant to Article 8 (a) of Law on Regulating Broadcasting in the Internet and Fighting against Crimes Committed through Internet Broadcasting, which is numbered 5651 and dated 4 May 2007, access to the contents of the news be blocked and that in the event that the contents in question were not removed, access to the relevant websites be completely blocked. The İstanbul Magistrate Judge’s Office no. 8, on the same day, by a decision miscellaneous no. 2015/1330 and dated 29 May 2015, ordered the blocking of access to the news in question, on the ground that they might lead to an inconvenient situation as regards the national and international interests, as well as, national security of the Republic of Turkey.

g) While the investigation into the incident was still pending, the applicant Erdem Gül reported news titled “Dirty operation (Kirli operasyon)” in the 11 June 2015 issue of the Cumhuriyet newspaper. The İstanbul Chief Public Prosecutor’s Office considered that the news in question served the ultimate objective of the FETÖ/PDY armed terrorist organization.

h) While the investigation was still pending, the applicant Erdem Gül reported news in the 12 June 2015 issue of the Cumhuriyet newspaper, by referring to the Gendarmerie Criminal Analysis reports concerning the MIT TRUCKS in question. The news contained the titles “THE GENDARMERIE REVEALS THE WEAPONS IN THE MIT TRUCKS THAT MR. ERDOĞAN SAYS EXIST OR NOT - Gendarmerie says they exist (ERDOĞAN’IN VAR YADA YOK DEDİĞİ MİT TIR’LARINDAKI SİLAHLARI JANDARMA TESCİLLEDİ - Jandarma var dedi)”, “LETHAL WEAPONS (ÖLDÜRÜCÜ SİLAHLAR)”, “PRODUCED IN RUSSIA (ÜRETİM YERİ RUSYA)” and “Gendarmerie confirms the lethal weapons (Jandarma   öldürücü   silahları doğruladı)” and included detailed explanations. The photos of the weapons and ammunition alleged to have been in the TRUCKS were published within the contents of the news. During his statement-taking process, the applicant Erdem Gül was asked “Where and from whom did you obtain these photos? Why did you publish them? Did you receive any instruction from anyone to publish these information and photos?”. He replied “I have been a journalist for 20-25 years. As you know, I cannot disclose my source. Therefore, I am sorry that I cannot give any information in this regard.”.

i) While the same investigation was still pending, the applicant Erdem Gül reported news in the 15 October 2015 issue of the Cumhuriyet newspaper, titled “… the hand that feeds you! (Besle kargayı …)”. The İstanbul Chief Public Prosecutor’s Office again considered that the said news served the ultimate objective of the FETÖ/PDY armed terrorist organization.

In addition, regard being had to the fact that the news and photos that had previously been published in another newspaper on the same issue were not exactly the same with those published by the applicants and that the applicants did not quote the relevant information and photos from the newspaper in question, and regard being had to the domestic and foreign developments during the period where the State’s impugned activities had been carried out, to the developments regarding the issues directly concerning the national interests and the national security, to the objectives of the FETÖ/PDY armed terrorist organization, to all facts surrounding the incident, such as the activities of the terrorist organization, and to the applicants’ responses to the questions addressed to them, it was concluded that “… in this way, the suspects knowingly and willingly served the objective of the FETÖ/PDY Armed Terrorist Organization to create an image that the State of the Republic of Turkey and its heads supported terrorism and thereby to cause them to appear before the International Criminal Court; that the suspects did not give information as to how they obtained the relevant information, photos and documents; that they obtained and disclosed these documents that should have remained confidential, for the purpose of espionage; that their acts cannot be considered within the scope of journalism; that Article 11 of the Press Law regulates the criminal liability, and while reporting the news, journalists are also required to abide by the laws and judicial decisions of the State where they live as citizens; and that regard also being had to the statements of the suspects and the content of the news reported by them, there exists evidence justifying the strong suspicion of guilt, and considering the imputed offences and the sentence stipulated by the law, the suspects’ detention on remand constitutes a proportionate measure…”.

35. Considering that the applicants’ appeal was against their initial detention order, as well as considering the aforementioned facts, it appears that the courts relied on sufficient grounds substantiating the existence of strong suspicion of guilt on the part of the applicants both in the detention order and in the decision dismissing their appeal against the detention order; therefore, it is concluded that the applicants’ right to personal liberty and security safeguarded by Article 19 of the Constitution and their freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution were not violated.

36. For the reasons explained above, I consider that the applicants’ right to personal liberty and security safeguarded by Article 19 of the Constitution and their freedoms of expression and the press respectively safeguarded by Articles 26 and 28 of the Constitution were not violated and that their application must be dismissed. Therefore, I do not agree with the conclusion of the majority who found “violation” in the present case.

 

DISSENTING OPINION OF JUSTICE RIDVAN GÜLEÇ

1. The present case concerned the alleged violations of the right to liberty and security as well as freedoms of expression and the press of the applicants Can Dündar, who was editor-in-chief of the Cumhuriyet newspaper, and Erdem Gül, who was the Ankara Representative of the same newspaper, due to their detention, on account of the photos and information they had published in the newspaper and on the internet, for aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”, “obtaining information in possession of the State that must be kept confidential, for the purpose of political or military espionage” and “disclosing, for the purpose of espionage, the information that must be kept confidential for reasons related to the security of the State”.

2. I do not agree with the conclusion of the Court that has found violations of Articles 19, 26 and 28 of the Constitution in respect of the applicants, for the reasons below.

3. According to the reasoning of the violation judgment delivered by the majority, the applicants carried out journalistic activities; the news which they reported within the scope of these activities included similar elements with a previously published one that had been disclosed to the public; they were summoned to the İstanbul Chief Public Prosecutor’s Office to give statement six months after the impugned news had been published, and hence they were detained on remand; the reasoning of the detention order issued against them contained no grounds justifying their detention on remand; and there was not sufficient suspicion of guilt on the part of them justifying their detention on remand.

4. Furthermore, in the reasoning of the judgment finding violations of the applicants’ freedoms of expression and the press, it was stated that the applicants’ detention on remand might have a deterrent effect on freedoms of the press members, and they might not perform journalistic activities freely within the scope of the society’s right to receive information.

5. For the reasons explained above, alleged violations of Articles 19, 26 and 28 must be examined respectively under each Constitutional provision. Otherwise, the limits set by the Constitution may be exceeded or the remedy before the Constitutional Court that is of secondary nature may be ignored.

6. Of course, it does not constitute a crime to report any fact as news or publish any thought or opinion as part of journalistic activities carried out within the scope of the freedoms of expression and the press. Within the framework of responsible journalism, it is duty of journalists to convey to the people the news and ideas considered to contribute to the public interest or public debates. However, while performing this duty, journalists must abide by journalism ethics. The State may impose restrictions on the news to be published by the journalists regarding a very delicate matter such as national security, as well as the public authorities may prevent the publication of certain news on such matters (see Observer and Guardian v. the United Kingdom). As a matter of fact, the acts that do not comply with the journalism ethics may be considered as offence and hence punished.

7. However, the applicants were detained for aiding and abetting an armed terrorist organisation knowingly and willingly, without being a member of it”, “obtaining information in possession of the State that must be kept confidential, for the purpose of political or military espionage” and “disclosing, for the purpose of espionage, the information that must be kept confidential for reasons related to the security of the State”. Accordingly, it appears that the charges against the applicants did not concern the news or publications issued within the scope of the freedoms of expression and the press, but they were charged with very serious and grave offences such as aiding a terrorist organization and obtaining and disclosing State secrets for the purpose of espionage.

8. In addition, the applicants’ allegations concerning their detention on remand and the alleged violations of their freedoms of expression and the press shall not be examined together. Regard being had to the fact that even the first hearing of the criminal case initiated before the 14th Chamber of the İstanbul Assize Court has not been held yet, examination of the detention order within the scope of the freedoms of expression and the press may impede the functioning of the judicial mechanisms that are vested with the actual duty and competence in terms of the protection of fundamental rights and freedoms in the circumstances of the present case.

9. Examination of the applicants’ complaints within the scope of freedom of expression and dissemination of thought (Article 26 of the Constitution) and freedom of the press (Articles 28 of the Constitution) may prevent the relevant judicial authorities that are vested with the actual duty and competence from prosecuting or it may hinder the independence and effectiveness of the prosecution process. The Constitutional Court’s substituting itself for the competent judicial authority in examining material facts does not comply with the provision of the Constitution which provides that in the individual application, the issues to be considered in appellate review shall not be subject to examination and the requirement that in order to lodge an individual application, the legal remedies must be exhausted. It appears that the issues set forth in the bill of indictment prepared by the public prosecutor’s office and the offences attributed to the applicants are not considered as offences falling solely within the scope of freedom of the press and dissemination of thought. On the contrary, the charges against the applicants were based on Articles 220 § 7, 314, 328 and 330 of the Turkish Criminal Code. In fact, the applicants’ detention was ordered three times, namely for each offence attributed to them (cited above).

10.  The alleged violation of the applicants’ freedom of the press and their right to disseminate opinions is premature. Furthermore, at this stage, it is not possible to make an assessment as to whether the impugned news reported within the scope of the freedom of the press were required by the pressing social need to receive information and whether there was a reasonable balance between the means of interference with the freedom and the aim pursued.

11. In the reasoning of the detention order issued against the applicants, it was asserted that the news and photos published in the newspaper and on the website were within the scope of an activity carried out in accordance with the objectives of the FETÖ/PDY (Parallel State Structure) armed terrorist organization, rather than the public’s right to receive information within the scope of journalistic activities. It is considered that examination of the present application, besides the challenge raised against initial detention, within the scope of freedoms of expression and the press may influence the ongoing proceedings, as well as it may restrict the court’s discretionary power in assessing the evidence.

12. The issues as to whether the acts attributed to the applicants constitute a crime and whether the impugned acts can be considered as journalistic activities carried out within the scope of freedoms of expression and the press can be resolved by the trial court at the end of the proceedings, relying on the available evidence. Similarly, lawfulness of the conclusion reached by the trial court may be subject to appellate review. Except for the situations leading to the violations of rights and freedoms as a result of interpretations obviously contrary to the Constitution and obvious arbitrariness in the assessment of evidence, it is within the inferior courts’ discretionary power to decide on as to whether the imputed acts constituted an offence, to interpret legal provisions, including those on detention, and to apply them to the present case (see H. Karaca).

13. In cases falling within the discretionary power of the inferior courts, the Constitutional Court cannot make assessments on the material fact. In the present case, the evidence and allegations put forward by the prosecution were considered as journalistic activities, and thus a violation was found. The scope of the individual application procedure that was introduced in our legal system with the constitutional amendment of 2010 has been set by the constitution-maker in a very precise and clear manner. Accordingly, in order to lodge an individual application, the ordinary legal remedies must be exhausted. While a dispute related to the freedoms of expression and the press -the judicial process of which has not been concluded yet- can only be examined within the scope of detention review, finding of a violation as a result of an examination based on a broad interpretation shall be contrary to the principle of rule of law.

14. The alleged violations of the applicants’ rights, safeguarded by Article 19 of the Constitution, due to their detention on remand can only be examined within the scope of their right to personal liberty and security. In this context, it must be concluded that the alleged violations of the applicants’ freedoms of expression and the press cannot be examined at this stage.

15. The rules on initial detention during criminal investigation are regulated in the Constitution and the relevant laws in detail. In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. Certain circumstances under which individuals may be deprived of their freedoms, provided that the procedure and conditions of detention are prescribed by law, are listed in Article 19 §§ 2 and 3 thereof. Therefore, the freedom of a person may be restricted only in cases where one of the circumstances specified in this article exists (see Ramazan Aras).

16. Article 19 § 3 of the Constitution stipulates that individuals against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention. In this context, the prerequisite for detention is the existence of a strong indication that the individual has committed an offence. This is a condition sine qua non for having recourse to the detention measure. Therefore, the accusation must be supported with plausible evidence likely to be considered strong. Nature of the facts and information which may be considered as plausible evidence is mainly based on the particular circumstances of each case (see Hanefi Avcı).

17. In the present case, which is known to the public as the MIT trucks case and the prosecution of which is still pending, some police officers and members of the judiciary who were alleged to be members of the FETÖ/PDY armed terrorist organization were detained for “membership of an armed terrorist organization”, “obtaining and disclosing information on the security and political activities of the State” and “attempting to overthrow the Government of the Republic of Turkey and prevent it from performing its duties”. It is an undeniable fact that these offences fall into the category of crimes requiring the most severe punishment in the criminal law and in the criminal policy of the constitution-maker.

18. It appears that even in the most advanced democracies in the world in terms of rights and freedoms, in the event of concerns about national security, certain restrictions and criteria shall be applied to the fundamental rights and freedoms of individuals and groups. In the present case, it is understood from the arguments of the judicial authorities that the TRUCKS which allegedly belonged to the National Intelligence Organization of the Republic of Turkey were stopped upon a denunciation, the materials carried by them were disclosed, and afterwards, the issue was conveyed to the Turkish and world public in a way that would endanger the national security of the Turkish State.

19. States are known to carry out similar activities within or outside their own geographical borders for their national security and national interests, which are the guarantees for maintaining their existence. Publication of information and documents related to these activities on the visual and social media is unacceptable for the State authorities. Julian Assange, who has been accused of publishing the intelligence data known as WikiLeaks Documents all around the world, still lives in the Ecuadorian Embassy in London as a political refugee. Although the United Kingdom and the United States requested his extradition for trial for the offences against national security, the Ecuadorian Government brought the issue before the International Organizations and rejected the relevant requests. Similarly, Edward Snowden, a US citizen, was accused of leaking the confidential information belonging to the US National Security Agency to a British newspaper and was forced to continue his life outside his country. I express such phenomena, of which there are much more examples around the world, in order to demonstrate that all States, with no exception, have developed certain reactions to issues related to national security, State secret, national interest and espionage.

20. The ongoing civil war and conflicts in Syria with which Turkey shares the longest geographical border have reached an extent which seriously threaten the national security of our country. The problems created by the conflicts in the region affect not only our country but also all European countries in terms of immigrants, terrorist activities and global instability. In this respect, in accordance with the rules enshrined in the Preliminary Provisions and Articles 3, 5 and 6 of the Constitution, where the integrity of the State, fundamental aims and duties of the State and sovereignty are defined, it is a duty and political obligation of the State of the Republic of Turkey to take the necessary measures and carry out activities in order to ensure the national security, protect our national interests and help our cognates and oppressed people living in the region. The news and information on the TRUCKS belonging to the National Intelligence Organization and the materials carried by them must be examined in the context of national security that is enshrined in many provisions of the Constitution, as the impugned activity was carried out by the National Intelligence Organization that is legally incumbent to perform such activities of the State within the scope of the above-mentioned duty and obligation of the latter. From this point of view, relying on the grounds specified in the judgment of the majority, it is not possible to conclude that the applicants’ freedoms of expression and the press have been violated.

21.  The bill of indictment issued about the incident where the MIT TRUCKS had been stopped in Adana and Mersin was accepted by the 2nd Chamber of the Tarsus Assize Court, and the file was sent to the 16th Criminal Chamber of the Court of Cassation in the capacity of the first instance court that would carry out the proceedings. In the bill of indictment, the accused were charged with the offences specified in Paragraph 17 above. The applicants’ publication of confidential photos related to this incident on a newspaper and website demonstrates that they had been informed of the charges attributed by the judicial authorities within the scope of the incident still being prosecuted, they had been aware that the allegations included very serious accusations related to the national security of the State. In fact, in their letters of individual application, the applicants stated that this issue could be considered by the judicial authorities as “a violation of the confidentiality of the investigation”, thus they implicitly accepted the issue.

22. As a matter of fact, the material facts that are not the subject-matter of the individual application and will arise at the end of the proceedings carried out by the inferior courts shall not be examined by the Constitutional Court. As the alleged violations of the applicants’ freedoms of expression and the press shall be examined at the end of the proceedings which are still pending, the present application shall be examined in relation to the lawfulness of the applicants’ initial detention and as to whether it was in breach of any rights of the applicants.

23. Referring to the judgment of Hanefi Avcı, we have stated that nature of the facts and information which may be considered as plausible evidence is mainly based on the particular circumstances of each case. However, for accusing a person, it is not absolutely necessary that adequate evidence be available at the stage of his arrest or detention on remand. In fact, the aim of detention is to conduct the judicial process in a more reliable manner by means of substantiating or eliminating the suspicions forming a basis for detention on remand. Accordingly, the facts forming a basis for the suspicions on which the accusation is based and the facts which would be discussed at the subsequent stages of the criminal proceedings and which would be a basis for conviction must not be considered at the same level (see Mustafa Ali Balbay).

24. Detention is regulated in Article 100 of Law no. 5271. According to this Article, a person can be detained only in cases where there exists a strong suspicion that he committed the crimes of which he is accused and there is a ground for his detention. A “ground for arrest” may be deemed as existing; a) if the suspect or accused had fled, eluded or if there are specific facts which justify the suspicion that he is going to flee; b) if the conduct of the suspect or the accused tend to show the existence of a strong suspicion that he is going to attempt to destroy, hide or tamper with the evidence and to put an unlawful pressure on witnesses, the victims or other individuals. The same article also provides a list of the offences for which a ground for detention may be deemed as existing, in the event that there is a strong suspicion of their having been committed (see Ramazan Aras).

25. Besides, issues as to the interpretation of law or as to factual or legal errors, which are included in the inferior courts’ decisions, cannot be dealt with during the individual application process unless fundamental rights and freedoms enshrined in the Constitution are violated. It is also within the inferior courts’ discretionary power to interpret legal provisions on detention and apply them to the present case. However, in case of an interpretation obviously contrary to the laws or to the Constitution and where there is an obvious arbitrariness in the evaluation of evidence, which results in violation of rights and freedoms, such decision shall be subject to review within the scope of individual application. Acknowledgement to the contrary shall not comply with the objective of the individual application (see Ramazan Aras).

26. It falls to the trial court to determine, relying on the available evidence, whether the acts attributed to the applicants constituted an offence, at the end of the proceedings. Likewise, lawfulness of this determination may be subject to appellate review.

27. For the reasons explained above and in the light of the relevant case-law of the Constitutional Court and the ECHR, I am of the opinion that while the alleged violations of Articles 19, 26 and 28 of the Constitution in respect of the applicants satisfy the admissibility criteria, finding of a violation is not appropriate.

 

 

 

 

 

 

 

 

 

I. CASE DETAILS

Deciding Body Plenary Assembly
Decision/Judgment Type Merits (violation)
Tag
(Erdem Gül and Can Dündar [GK], B. No: 2015/18567, 25/2/2016, § …)
   
Case Title ERDEM GÜL AND CAN DÜNDAR
Application No 2015/18567
Date of Application 4/12/2015
Date of Decision/Judgment 25/2/2016
Joined Applications 2015/18570
Official Gazette Date/Issue 10/3/2016 - 29649
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


The case concerns the alleged violations of the right to liberty and security as well as freedoms of expression and the press of the applicants who were editor-in-chief and the representative of a newspaper, due to their detention for, inter alia, their alleged membership of an armed terrorist organisation.

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Right to personal liberty and security Criminal charge (unlawfulness of detention) Violation Re-trial
Freedom of expression Press Violation Re-trial
Right to personal liberty and security Criminal charge (detainee’s access to investigation file) Manifestly ill-founded

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law 5237 Turkish Criminal Law 220
314
328
330
5271 Criminal Procedure Law 100
101
153
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